"'j«u<unii  ji> 


^lOSANCEier^ 


WJIIT^  4^ 


AWEUNIVERr/A        vvlOS  ANCFUr> 


'WAfl¥a<}jr3''' 


"  v/vu»ya4j  i' 


-^  / 


^OFCAIIFOP^ 


ip-cAurnr^ 


.^WE 


^lOSANCfl% 


>M-UBRARYQ^^ 


From  the  Library  of 
Professor  David  Mellinkoff 


Who  donated  his  coli.ection 

TO  THE 

UCLA  School  of  Law 

Hugh  &  Hazel  Darling 

Law  Library 

August  1999 


"Cleansed  of  words  without  reason,  much 
of  the  language  of  the  law  need  not  be 
peculiar  at  all.  and  better  for  it." 

The  Language  of  the  Law 
BY  David  Mellinkoff 


^OFCAIIFOI?^ 


^•lOSAMCFier^ 


"^^/SlUAlNlViiVV^ 


0/- 


fi  ir:  I 


'^Vjo.i  yvuorxiv^ 


"tyVpuiiiun.ivi 


ilFO;?^.       .^oFCAIIfOff^         .5J\EI)NIVERS/A       avIOSANCEUt* 


frli 


^OFCAIIFOR^      ^OFCAll 


iiaiii^     ^>&A}^vya^l^«^       <Qu3Hvsoi'<^     "^/siUAiNn-aViV^       "^(JAavnain^     "^(^AJiva 


IVEBJ/yji.       ^lOSAhiCfUr^        ^t-UBRARYOc^ 


■^/SaaAlNrtl^Vv"^ 


^<?Aava8ni>J^ 


,^EUNIVER% 


<riUDKVS01=^ 


.\V\EUNIVER% 


'^^AHvaan-^^"^        ^i^uDNvsov^ 


^lOSAN 

O 


RARVO^ 


^ 


IV3-J0' 


-^■UBRARYO^ 
§  1   <r^  ^ 


so 


^\\«UNIVER% 


^•lOSANCEl^^ 


5  i   <^"^  ^ 


<riU3Nvso^^'^     "^/iiUAiNnai^^       ^^ojiiwjo^ 


\^m. 


^.OFCAUF{% 


AV\EUNIVER;/a 

Q'  —  - 

>- 


^lOSANCEUr^ 

o  ^ 

CO 

so 

> 


^OFCAUFOP^ 

> 


^^.OFCAll 


"^^AMviian^ 


^'^om^% 


IVERS/A 


^10SANCEI% 

o 


^•UBRARYOr,       -j^l-UBRARYQr 


MM\l, 


\mmmmt^^. 


mumi^'^     '^.JojiivDJO^      ^fiUDNvsoi^ 


^/iaaAiN! 


^•lOSANCElfj> 


'^/CJllAINftlU'V 


^OFCAllFOff^      ^.OFCAllFOftjj^ 
:>    V/  _  IS     > 


£?      55. 


*>&iMVMflnAV^ 


'^<9AHVilfln^>J^ 


.v.'-UNIVER%       ^lOSANC 


'<^^ll'^Nv•w>^ 


■^/WlAlNf 


W 


[\n.jA 


V"  ^Wiif\  I  nvr\  if\W 


^53AMINIVE1?S/4       ^lOSANCEUr^ 


>4V  T/lf\f\  4  iiin  lUV^ 


^iUBRARYQ^.       H5^!•UBR)W 


WllA  IITW4 


. 


. 


REPORTS 


OF 


CASES   IN  CHANCERY, 


ARGUED  AND   DETERMINED 


COURT  OF  APPEALS, 

OF 

SOUTH    CAHOLINA, 

FROM  JANUARY,  18^3,  TO  JANUARY,  1834,  BOTH  INCLUSIVE. 


BY  W.  11.  HILL. 


VOLUME  I. 


CHARLESTON ,    S.   C. 
McCARTER    i    Co.,  No.  116   MEETING   STREET. 
.       1858. 


JUDGES  OF  THE  COURT  OF  AFPEALS. 

Hos.  DAVID  JOnXSOX,  President. 
nox.  J.  B.  O'XEALL.  |  Hos.  WILLIAM  IIARPER. 


CIIANCELJ.OUS. 

UoN.  HEXRY  W.  DE  SAUSSURE.  |  IIos.  JOB  JOIIXSTOX. 


TABLE    OF    CASES 
REPORTED    IN    THIS    VOLUME. 


[The  folios  in  this  Table  refer  to  those  marked  with  an  asterisk,  *  ] 


A 
Adams  and  others  v.  Chaplain  and 

others, 265 

Alexander,  Miller  v 25 

Alexander  and  others,  Green  v 138 

Allen,  Pi  ingle  and  others  v 135 

Ardrian  and  another,  Cordes  v 154 

B 
Bankhead,  Adm'r,  r.  Carlisle,  Adm'r  357 

Barber,  I'eay  &  Pickett  v 95 

Benoist,  Ailm'x  f.  Poirier,  Adm'r...  217 

Boon  and  wife,  Fraser  v 3(j0 

Bfiozer  r.  Wallace  and  others 393 

Bowman,  Brock  v. 338 

Brock   I'.  Bowman 338 

Brown  and  others  v.  M'Donald 297 

Burgess  t>.  Heape 307 

C 

Cabeen  v.  Gordon  and  others 51 

Calmes,  Ex  parte 112 

Capehnrt  and  wife  and  others  v.  The 

Adm'r  of  Huey 405 

Carew,  IMunkot  i' 10!' 

Carlisle,  Adm'r,  Bankhead  v 357 

Chaplin  and  others,  Adams  and  oth- 
ers V 265 

Chestnut   and   wife   and    others   v. 

Strong,  Kx'or 122 

Clarke  and  wife  v.  Saxon 09 

Cole  and  otliers  i'.  Creyon 311 

Collier  and  wife  and  others,  Robert- 
son and  others  v 370 

Connor,  Maxwell  i' 14 

Cordes  r.  .\rdrian  and  another 154 

Creyon,  Cole  and  others  i- 311 

D 

Daniel,  M'CuUou;,h  v.  (Note  a) 28 

Dawkins  &  Littlcjohn  v.  Smith 3G9 

Dawson  v.  Scriven 177 

Drayton  i'.  Grimke,  Adm'r 224 

E 

Edmonds  &  wife  and  others,  M'Mee- 

kin  I' 288 

Eigleberger  and  others  r.  Kibler 113 

Evans  and  others,  Vaughan  and  oth- 
ers I' 414 

Ex  parte  Calmes 112 

Ex  parte  Galluchat 148 

Ex  parte  Leith,  Ex'or 152 

Ex  parte  M'Cleland 412 


Ex  parte  Smith.... 
Ex  parte  Wiggins. 


140 
353 


F 


Farr  t'.  Farr,  Ex'or 387 

Follin  and  wife,  White  and  Hunt  v..  187 

Foote,  Adm'r  of,  v.  Van  Ranst 185 

Fraser  y.  Boone  and  wife 360 

Frazier  and  wife  i'   Vaux,  Ex'or 203 

Frip  r.  Talbird 142 

G 

Galluchat,  Ex  parte 148 

Gordon  and  others,  Cabeen  r 51 

Green  v.  Alexander  and  others 138 

Grimke,  Adm'r,  Drayton  v 224 

H 

Ilaigood  V.  Wells 59 

Hale  and  others,  Jugnot  v 430 

Iliirtley,  Hillegas  and  wife  and  oth- 
ers V 106 

Heape,  Burgess  v 397 

Heath  and  another,  Muckenfuss  v...  182 
Hillegas    and    wife    and    others   i'. 

Hartley  106 

Ilinson  and  wife  r.  Pickett 35 

Hopkins,  Ex'ors  of,  i'.  Mazvck   and 

others .'. 242 

Flopkins  and  others,  Terry,  Adm'r  y.       1 

Hubbell  and  other,  Prescott  v 210 

Hucy,  Adm'r  of,  Capehart  and  wife 
and  others  t> 405 

I 

Ton  and  others,  Kinloch   and   oth- 
ers V 405 


Jackson,  Adm'r,  Skilling  i; 185 

Jennings    and    others,    Spann   and 

Wife  I' <5_* 

Johnson,  Volentine  i' 49 

Johnston    and    others,  Magwood   & 

Patterson  v — '^ 

Joyner,  Ex'or,  and  others,  Screven  v  252 

Jugnot  V.  Hale  and  others 430 

K 

Kershaw   and   others,  Perkins   and 

others  v ^^^ 

Kibler,  Eigleberger  and  others  v 113 

Kinard,    Adm'r,    Riddlehoover   and 
others  v 2"" 


TABLE   OF   CASES. 


Kinloch    and    others    v.    Fon    and 

others 

L 

Leith,  Ex'or,  Ex  parte 

Lever  v.  Lever 

Loveland  &  Wilson  v.  Mansell  & 
Reid 

Lyles  V.  Lyles,  Adm'r,  and  others.... 

M 

Macon-i  Adm'r,  Smith  &  Cuttino  v... 

Magwood  &  Patterson  v.  Johnston 
and   others 

Mansell  &  Reid,  Loveland  &  Wil- 
son V 

Martin,  Com'r,  and  Surrties,  State  \. 
(Note  a) 

Maxwell  v.  Connor 

Maxwell,  Ex'or,  Smith  v 

Mazyck  and  others,  Ex'ora  of  Hop- 
kins r 

M'Cleland,  Ez  parte 

M'Craven,  Adm'r  of,  Pinchback  i... 

^rCraven,  Adm'r  of,  I'inchback  v... 

M'Culloiif//t  V.  Daniel  (Note  a) 

M'Donald,  Brown  and  others  v 

M'Elwee  v.  Sutton  &  Black 

M'Mcekin  t^.  Edmonds  and  wife  and 
others  

Miller  v.  Alexander 

Motte  V.  Shultc  e»c  Motte 

Muckenfuss  v.  Heath  and  another... 

Myers,  Adm'r,  v.  Pickett 

N 

Naylor,  Young  v 

Nesbit.  Price,  Ex'or  v 

Neufville  v.  Stuart 

Kewman  and  wife  «;.  Wilbourne  and 

others 

Nixon,  Perry  u 

0 

Osborne  and  others,  Smith  &  Cut- 
tino V 


Peay  &  Pickett  v.  Barber 

Perkins  and  others  r.  Kershaw  and 
others 

Perry  v.  Nixon 

Pickett,  Hinson  and  wife  r 

Pickett,  Myers,  Adm'r  r 

Pinchback  v.  The  Adm'r  of  M'Cra- 
ven   

Pinchback  v.  The  Adm'r  of  M'Cra- 
ven  

Plunket  V.  Carew 

Poag,  Ex'or,  v.  Poag 

Poirier,  Adm'r,  Benoist,  Adm'x  r... 

Prescott  V.  Hubbell  and  others 


190 


152 
02 

129 
76 


339 

228 

129 

428 

14 

101 

242 
412 
307 
413 

2H 
297 

32 

288 
2.') 

14f. 

1H2 
36 


3S3 
4-J5 
159 

10 
335 


340' 


95 

I 

344 

335  I 

35 

35 

307  ] 

413 
169 
285 
217 
210 


Price,  Adm'r  of,  Sinclair  &  Kiddle  v.  481 

Price,  Ex'r,  v.  Nesbit 445 

Pringle  and  others  v.  Allen  135 

Purcell,  Exx,  Waring,  Ex'or  r 193 

R 
Riddlehoover  and  others  v.  Kinard, 

Adm'r 576 

Robertson  and  others  v.  Collier  and 

wife  and  others 370 

S 

Saxon,  Clarke  and  wife  v C<0 

Screven  r.  Joyuer,  Ex'or  and  others  252 

Scriven,  Dawson  r 177 

Scriven  y.  Scriven 177 

Shulte  &  Motte,  Motte   i- 146 

Shultz  and  others,  Stoney  &  others  r  405 
Sinclair  &  Kiddle  r.  Adm'rs  of  Price  431 

Skilling  r.  Jackson,  Adm'r 185 

Smith  V.  Maxwell,  Ex'or l<il 

Smith  &  Cuttino  v.  Macon,  .Adm'r...  339 
Smith    &   Cuttino   v.  Osborne   and' 

others 340 

Smith  Ez  parte 140 

Smith,  Dawkins  &  Littlejohn  i- 309 

Spann    and   wife   v.    Jennings    and 

others 324 

Spann  v.  Stewart  and  others 326 

Stale  V.  Martin,  Com'r,  and  Surttiet 

(Note  a) 428 

Stewart  and  others,  Spann  v 326 

Stoney    and    others    v     Shultz    and 

others 4G5 

Strung,    Ex'or,    Chestnut   and   wife 

and  others  r 122 

Stuart.  Neufville  r 159 

Stuckey  r    Stuckey 308 

Sutton'&  Black,  M'Elwee  «• 32 


Talbird.  Frip  v 142 

Terry,  .Vdm'r,  r.  Hopkins  and  others       1 

V 

Van  Ranst,  .\dm'r  of  Foote  r 185 

Vaughan  and   others  v.  Evans  and 

others 414 

Vaux,  Ex'or,  Frazier  and  wife  i- 203 

Voleutine  v.  Johnson 49 

W 

Wallace  and  others,  Boozer  v 393 

Waring,  Ex  or,  v.  Purcell,  Ex'x 193 

Wells,  Haipood  v 59 

White  and  Hunt  v.  Follin  and  wife..  187 

Wiggins  Ez  parte 353 

Wilbourne,  Ex'or  and  others,  New- 
man and  wife  r 10 


Young  V.  Naylor. 


383 


CASES    IN    CHANCERY 

DETERMINED    IN    THE 

COURT  OF  APPEALS  OF   SOUTH  CAROIIM. 

Columbia — |aitoarjj,   1833. 


JUDGES  PRESENT. 


Hon.  DAYID  JOHNSON,  Presiding  Judge. 
Hon.  J.  B.  O'NEALL.      |     Hon.  WILLIAM  HARPER. 


*Thomas  Terry,  Administrator  of  his  wife,  Martha  Teny,  de-  r-^^ 
ceased,  v.  Ferdinand  Hopkins,  Sen.,  and  others.  ■- 

Where  a  widow,  before  her  second  marriage,  convej's  her  propertj'  to  the  children  of 
her  first  marriage,  reserving  only  a  life  estate  in  a  portion,  to  herself,  and  this 
was  known  to  her  inten<led  husband,  the  conveyance  is  not  a  fraud  on  his  mari- 
tal rights,  but  is  valid. [*4]f 

Where  a  parent  gave  a  slave  to  his  daughter,  on  her  marriage,  on  condition  that  he 
shoiild  have  a  right  to  take  him  back,  on  paying  his  value,  or  substituting  other 
property;  the  marital  rights  of  the  husband  attach,  and  the  right  of  property 
vests  in'  him,  subject  to  that  condition,  and  devolves  on  his  administrators,  after 
his  death,  to  the  same  extent,  and  in  the  same  condition. [*5] 

A  husbiind  who  has  administered  on  his  wife's  estate,  cannot  be  reimbursed  out  of 
it,  for  payments  made  l)y  him,  during  coverture,  on  a  contract  of  the  wife  before 
m'arringe  ;  but  he  will  be  entitled  to  credit  for  any  payment  on  that  account, 
since  her  death. [*7] 

A  husband,  as  the  administrator  of  his  wife,  will  not  be  allowed  to  raise  an  account 
against  her  children  by  a  former  marriage,  for  her  care  and  trouble  in  attending 
to  them  before  her  second  marriage,  and  for  raising  young  negroes,  when  she 
herself,  made  no  such  charges.  [*8] 

A  trustee  who  has  received  money,  must  discharge  himself  by  proof.  [''!)] 

A  defendant,  who  in  his  answer,  prays  an  account  from  the  plaintiff,  is  bound  to 
render  an  account  of  any  moneys  due  to  the  latter,  although  the  bill  does  not  pray 
au  account  against  hiui.[*'J] 

This  was  a  bill  to  set  aside  certain  deeds,  and  for  an  account  and  par- 
tition. The  facts  of  the  case,  and  the  several  questions  arising  out  of 
them,  are  presented  in  the  following  opinion  of  the  Court  delivered  by 

Johnson,  J.  In  February,  1819,  the  complainant  married  Mrs.  Hop- 

t  The  syllahusp.'s  in  this  work,  are  taken  from  side  notes  of  edition  of  1834,  on  pages  indicated  by 
figures  enclosed  in  brackets. 


6  SOUTH   CAROLINA    EQUITY   REPORTS.  [*1 

kins  the  relict  of  Geo.  "W.  Hopkins,  who  died  intestate,  and  he  charges  in 
his  bill  in  substance  : — That  by  a  partition  of  his  estate,  only  one-sixth  of 
the  personal  estate,  being  an  equal  portion  with  *each  of  her  children, 
^-'  was  allotted  to  the  widow,  instead  of  one-third  to  which  she  was 
entitled  bv  law,  and  deeds  executed  by  her,  on  the  19th  December,  1818, 
by  which,' in  effect,  she  confirmed  it,  and  reserving  to  herself  only  a  life 
estate  in  the  portion  allotted  to  her,  were  procured  and  obtained  from 
her,  by  the  fraud  and  covin  of  the  defendant  Ferdinand  Hopkins,  Sen., 
and  upon  his  representation  that  the  property  in  the. negroes,  which 
constituted  the  bulk  of  the  personal  estate,  was,  in  himself,  were  fraudulent 
and  void  as  to  the  widow.  But  if  not,  that  her  deeds,  of  the  19th  Decem- 
ber, 1818,  were  a  fraud  upon  his  marital  rights,  and  therefore  void. 

The  answer  of  Ferdinand  Hopkins,  Sen.,  positively  and  unequivocally 
repels  the  allegation  of  fraud,  on  his  part,  and  states  tliat  during  the  re- 
volutionary war,  his  father  David  Hopkins,  gave  to  himself  and  his  brother 
Newton  Hopkins,  the  stock  from  which  these  negroes  descended,  in  trust 
that  they  would  divide  them  equally  between  themselves,  and  their  bro- 
ther G.  W.  Hopkins  the  intestate,  and  a  sister,  Mary ;  which  had  been 
done  to  the  entire  satisfaction  of  all  parties.  That  the  intestate  took  the 
exclusive  possession  of  those  allotted  to  him,  in  1798  or  '9,  and  con- 
tinued in  possession  of  them,  up  to  the  time  of  his  death,  and  that  they 
remained  in  possession  of  his  widow  up  to  the  time  of  the  partition,  and 
that  he  never  had  at  any  time,  pretended  any  claim  to,  or  interest  in  the 
negroes.  In  connection  with  this  subject,  it  appears  that  the  defendant 
Ferdinand  Hoi)kins,  Sen.,  had  by  deed  dated  the  30th  December,  1790, 
conveyed  to  G.  W.  Hoitkins,  his  ])ortion  of  the  negroes,  given  l)y  their 
father,  and  upon  the  partition  of  iiis  negroes  amongst  his  children  and 
widow,  on  the  19lh  December,  1818,  he  conveyed  to  each  child  (with  the 
exception  of  Mrs.  Glenn,  who  seems  to  have  ijeen  forgotten),  the  portion 
of  these  negroes  allotted  to  them,  reciting  that  the  title  was  in  himself. 
This  deed  was  found  by  the  complainant,  amongst  the  papers  of  G.  W. 
Hopkins,  after  bill  fded.  In  relation  to  this  matter,  he  states  in  his  an- 
swer that  the  deed  to  George  W.  Hopkins,  of  1799,  had  been  forgotten 
both  by  himself  and  the  widow,  when  the  deeds  of  1818,  were  executed, 
and  that  it  was  done  to  avoid  any  question  about  his  rights.  He  denies, 
also,  unequivocally,  that  he  exercised  any  influence  over  Mrs.  Hopkins, 
^o-i     to  procure  her*  to  execute  the  deeds  of  the  19tii  December  1818, 

-^  by  which  reserving  a  life  estate,  she  relincpiishes  her  interest  to  her 
children,  and  avers  that  it  was  done  wholly  of  her  own  accord. 

On  the  death  of  George  W.  Hojikins,  in  1805,  his  widow  and  the 
defendant  Ferdinand  Hopkins,  Sen.,  administered  on  his  estate  ;  and  in 
the  inventory  made  l)y  them  and  returned  to  the  Ordinary's  Oflice,  these 
negroes  are  included  :  and  it  is  also  worthy  of  remark,  that  in  the  deeds 
from  Mrs.  Hopkins,  of  the  19th  December  1818,  written  by  F.  H.,  Sen. 
it  is  recited  that  the  negroes  and  other  property  therein  contained,  are  a 
part  of  the -estate  of  George  W.  Hoi)kins.  Thus  much  I  have  collected 
from  the  documents  before  me,  and  I  will  now  proceed  to  extract  from 
the  parol  testimony  what  relates  to  their  questions. 

William  Hughes  a  witness  for  the  defendant,  stated  that  before  ^Irs. 
Hopkins  made  the  deeds  of  the  19th  December,  1818,  she  stated  in  a 
conversation  with  him,  that  "  she  intended  to  convey  her  property  to  her 


*o]  COLUMBIA,    JANUARY,    1833.  7 

children,  but  wished  to  reserve  a  life  estate  in  herself ;"  and  he  had  another 
conversation  with  her  after  the  conveyance  was  executed,  but  she  did  not 
then  speak  of  its  particular  provisions.  Ephraim  Lyles,  another  witness, 
states  that  he  was  twice  sent  for  to  write  this  deed  ;  upon  his  going,  he 
advised  Mrs.  Hopkins  "  to  send  for  the  defendant,  Ferdinand  Hopkins, 
Sen.,  and  when  he  came,  the  witness  being  informed  that  the  right  of  the 
l)roperty  was  in  him,  suggested  to  hira,  that  he  ought  to  convey  it  from 
himself,  and  that  Mrs.  Hopkins  then  executed  the  deeds  to  her  children." 
She  acted,  says  this  witness,  against  the  advice  of  the  defendant, 
Ferdinand  Hopkins,  Sen.  He  advised  her,  "to  hold  the  staff  in  her 
own  hands." 

Opposed  to  this,  is  the  evidence  of  Mrs.  Terry,  to  whom  Mrs.  Hopkins 
stated,  about  a  year  before  her  marriage  with  the  complainant,  that  the 
title  of  these  negroes  was  in  the  defendant  Ferdinand  Hopkins,  Sen.,  and 
that  he  had  frequently  "urged  her  to  make  the  titles  to  her  own  children," 
and  that  they  were  to  be  so  made.  Afterwards  she  complained  that  it 
was  a  hardship,  as  she  had  had  so  much  trouble  in  raising  the  negroes, 
and  could  not  now  call  one  of  them  her  own.  Burr  Head  also  states, 
that  shortly  after  the  division  of  the  negroes,  *he  heard  her  express  r-^. 
much  dissatisfaction  concerning  one  which  had  fallen  to  her  daughter  ^ 
Mrs.  Glenn,  which  she  had  raised  about  the  house,  and  wanted,  and  Mrs. 
(ilenn  would  not  exchange  with  her.  But  expressed  no  dissatisfaction 
about  the  deeds. 

These  are  the  leading  facts  connected  with  this  question,  and  they  leave 
in  my  mind  no  doubt  that  the  defendant,  Ferdinand  Ho[>kins,  Sen.,  acted 
with  perfect  fairness  in  this  transaction  The  entire  absence  of  any  in- 
terest on  his  part, — his  never  having  pretended  any  claim — his  returning 
them  in  the  inventory,  as  a  part  of  the  estate  of  G.  W.  Hopkins — his 
advice  to  Mrs.  Hopkins,  "  to  hold  the  staff  in  her  own  hand" — are  all 
utterly  inconsistent  with  a  design  on  his  part,  to  use  an  improper  influence 
over  Mrs.  Hopkins,  in  any  disposition  she  might  think  proper  to  make 
of  her  interest,  in  this  part  of  the  estate:  and  his  account  of  his  having 
forgotten  the  deed  to  G.  W.  Hoi)kins,  made  in  the  partition  on  the  30th 
December,  1799,  is  tlic  only  rational  solution  of  the  incongruity  arising 
from  his  having  executed  the  subsequent  deed  of  1818.  It  follows  then 
that  the  deeds  executed  Ijy  Mrs.  Hopkins  to  her  children  were  voluntary 
on  her  part,  and  binding.  The  Chancellor  has  so  decided,  and  so  far  as 
that  question  is  concerned  the  appeal  must  be  dismissed. 

2.  The  second  question  arising  out  of  this  state  of  the  facts,  is 
whether  supposing  the  deeds  voluntary,  on  the  part  of  Mrs.  Hop- 
kins, they  are  a  fraud  on  the  marital  rights  of  the  complainant,  and 
therefore  void.  A 

The  fortune  of  the  intended  wife  is  most  frequently  a  weighty  con- 
sideration and  a  strong  inducement  to  the  marriage  contract,  and  the 
happiness  of  both  the  parties  may,  in  a  good  degree  depend  on  the 
observance  of  good  faith,  with  respect  to  it;  and  the  genereral  rule, 
very  clearly,  is^hat  if  pending  a  treaty  of  marriage,  the  intended  wife 
makes  a  secret  voluntary  disposition  of  her  property,  and  the  marriage  is 
a  fraud  upon  tlie  martial  rights  of  the  husband,  and  void  In  Hunt  & 
Matthews,  1  Yern.  408,  a  widow  before  she  married  again,  disposed  of  the 
greater  part  of  her  estate,  for  the  benefit  of  her  children  by  her  first  mar- 


8  SOUTH   EQUITY   CAROLINA    REPORTS.  [*4 

riao-e  and  it  became  a  question  whether  that  disposition  was  void  as  to 
*  '  the  second  husband,  who  had  married  her  a*  short  time  after ;  and 
*^^  it  was  held  that  it  was  not — the  Court  deeming  it  a  conscientious 
thino"  in  the  wife  to  provide  for  such  children,  before  she  placed  herself 
in  the  power  of  a  second  husband.  And  I  remember  that  that  rule  is 
stated  in  the  case  of  Jones  v.  Cole,  brought  up  to  this  Court,  from  Xew- 
berry  some  time  ago,  but  not  yet  reported,  when  the  husband  also  had 
notice.  But  Roper,  in  his  treatise  on  the  laws  arising  from  the  relation 
of  husband  and  wife  (page  162)  questions,  and  I  think  with  much  show 
of  reasoning,  the  propriety  of  allowing  this  case,  as  an  exception,  to  the 
o-eneral  rule  laid  down  in  Strathmore  v.  Bowes,  1  Ves.  Jun.  28,  & 
Havard  v.  Hooker,  2  Ch.  Rep  81.  The  objection  he  remarks,  is  not,  to 
the  object  of  the  settlement.  The  fault  is,  the  fraud  committed  by  it,  on 
the  second  husband,  and  it  would  seem  that,  as  to  him  the  effect  must  be 
precisely  the  same,  whether  the  disposition  was  in  favor  of  the  children 
or  others.  This  case  however  steers  clear  of  this  difliculty.  There  is  in 
the  first  place  no  proof  that  the  the  treaty  of  marriage  was  on  foot  at  the 
time  these  deeds  were  executed.  They  are  dated  on  the  19th  of  Decem- 
ber, 1818,  and  the  marriage  was  not  solemnized  until  some  time  in  the 
mouth  of  February  following  ;  a  period  too  long  necessarily  to  authorize 
the  inference  that  the  treaty  of  marriage  was  then  pending.  But  a  con- 
clusive circumstance  is  that  the  complainant  had  notice  of  these  deeds, 
before  his  marriage.  The  witness  Lyles,  told  him  of  the  deeds — Emanuel 
Allen  informed  him  that  the  negroes  were  generally  considered  as  the 
property  of  the  defendant  Ferdinand  Hopkins,  Sen.  ;  and  in  the  Chancel- 
lor's decree  of  1825,  it  is  said  he  approved  and  applauded  it.  If  the 
fortune  was  the  inducement  to  seek  the  marriage,  this  would  have 
furnished  a  reasonable  ground  to  have  broken  it  off,  and  he  will  not  be 
permitted  now  to  complain  of  a  circumstance  which  was  known  to  him 
before  he  was  committed. 

3.  At  the  time  of  the  intermarriage  between  the  complainant  and  Mrs. 
Hopkins,  she  had  possession  of  two  negroes,  Daniel  and  Betty,  which  the 
complainant  claims,  in  virtue  of  his  marital  rights, — the  defendants  on  the 
contrary  claim  them  as  part  of  the  estate  of  George  W.  Hopkins. 

The  circumstances  connected  with  these  claims,  appear  to  me  to  admit 
5|,p-]  of  no  doubt.     The  evidence  of  Thomas  Booker,  *  James  Sanders, 

-^  Daniel  Glenn,  Wm.  Wright,  William  Hughes,  Mrs.  Head,  Bennett 
Humphries,  Loften  Nunn,  and  Mrs.  Nunn,  make  out  beyond  all  contra- 
diction, that  Bird  Booker,  the  father  of  Mrs  Hopkins,  gave  to  her,  negro 
Will,  during  the  lifetime  of  her  first  husband,  George  W.  Hopkins,  with 
an  understanding,  that  he  would  have  the  right  to  take  him  back  again, 
if  he  thought  proper,  on  paying  the^lue  for  him,  or  substituting  other 
property  in  his  place.  Subsequently  to  the  death  of  George  W.  Hopkins, 
and  before  the  marriage  of  his  widow.  Bird  Booker  did  take  "W'ill  back, 
and  put  in  his  place  a  negro  called  Phill,  who  on  being  chastised  a  few 
days  after,  by  the  overseer,  ran  away  and  returned  to  Mr.  Booker.  About 
four  years  after,  Mr.  Booker  sent  to  Mrs.  Hopkins,  Daniel  and  Betty, 
the  negroes  in  controversy.  Daniel  was  of  less  value  than  Will,  and  the 
witness  says,  that  the  additional  negro  Betty,  was  sent  for  the  purpose  of 
supplying  this  difference  in  value,  and  as  a  compensation  for  the  loss  of 
the  services  of  Will,  during  the  time  he  had  him.     The  circumstances 


*6]  COLUMBIA,   JANUARY,    1833.  9 

relied  upon  by  the  complainant,  to  show  that  Daniel  and  Betty  was  a 
gift  directly  to  Mrs.  Hopkins,  by  her  father,  are  1st.,  that  neither  they 
nor  Will,  were  included  in  the  inventory  of  George  W.  Hopkins'  estate  • 
and  2dly,  that  these  negroes  are  given  to  her,"by  the  will  and  testa- 
ment of  her  said  father,  dated  on  October,  1818,  and  long  after  she  had 
them  in  possession. 

If,  as  has  been  assumed.  Bird  Booker  gave  Will  to  Mrs.  H.,  in  the 
lifetime  of  her  first  husband,  subject  to  the  condition,  that  he  should  be  re- 
stored upon  his  paying  value,  or  substituting  other  property,  the  property 
in  Will  vested  in  Geo.  W.  H.,  subject  to  that  condition,  and  Mr.  Booker 
was  not  at  liberty  to  resume  the  property,  without  having  first  performed 
the  condition — these  rights  devolved  on  the  administrators  of  Geo.  W. 
H.  precisely  to  the  same  extent,  and  in  the  same  condition  as  they  existed 
in  him,  and  no  neglect,  on  the  part  of  the  administrators,  to  include  Will 
in  the  inventory,  nor  the  subsequent  act  of  Mr.  Booker,  in  disposing  of 
the  negroes  substituted  for  Will,  could  vary  them  But  these  circum- 
stances appear  to  me,  to  be  reconcilable  with  the  assumed  state  of  facts. 
It  was  known  that  Mr.  Booker  had  reserved  the  right  to  take  back  Will 
— probably  his  determination  to  do  so,  was  known  *at  the  time,  and  r-^„ 
he  was  not,  therefore,  included  in  the  inventory  of  Geo  W.  H.'s  L'  ' 
estate  ;  improperly,  I  admit,  but  I  can  well  conceive,  that  persons,  in- 
tending to  do  what  was  right,  might  not  well  understand  the  character 
and  the  extent  of  his  rights.  Bird  Booker  had  not  made  any  formal 
transfer  of  the  negroes,  Daniel  and  Betty,  and  he  might  have  thought  it 
necessary  to  give  them  in  his  will,  as  confirmatory  of  what  he  had  before 
done — a  very  common  practice,  and  I  cannot  perceive  any  evil  growing 
out  of  it.  We  are,  therefore,  of  opinion,  that  Daniel  and  Betty  must  he 
regarded  as  part  of  the  personal  estate  of  Geo.  W.  H.  and  accounted  for 
as  such ;  and  the  decree  of  the  Circuit  Court,  in  this  respect,  must  be  re- 
versed 

4.  During  the  widowhood  of  Mrs.  H.,  she  purchased  a  tract  of  land 
situated  in  Union  District,  for  $2,800,  on  a  credit,  and  gave  her  note  for 
payment.  A  part  of  this  sum  was  paid  by  her,  before  her  intermarriage 
with  the  complainant.  During  their  coverture,  the  complainant  himself 
paid,  on  account  of  this  contract,  the  sum  of  $800,  and  subsequently  to 
her  death,  $903  82,  as  appears  by  the  Report  of  the  Commissioner  of 
July,  1831 ;  and  one  question  raised  on  the  part  of  the  defendant  is, 
whether  he  is  entitled  to  be  reimbursed  out  of  the  lands,  or  her  personal 
estate,  for  the  sum  paid  by  him  during  the  coverture. 

Mrs.  Terry  died  entitled  to  a  personal  estate,  not  reduced  to  possession 
by  the  complainant  during  their  coverture,  and  after  her  death  he  adminis- 
tered on  it.  It  is  not  questioned,  that  in  his  account  of  this  estate,  he 
is  entitled  to  be  credited  with  the  amount  paid  on  this  contract,  subse- 
quently to  her  death.  He  was  not  personally  liable,  (Roper  74)  and  of 
course  it  must  be  charged  to  her  estate.  But  the  claim  to  be  reimbursed 
the  amount  paid  by  him  during  the  coverture,  is  clearly  untenable.  The 
husband  takes  the  wife  cum  onere ;  and  during  the  coverture,  the  debts 
contracted  by  the  wife  are  the  debts  of  the  husband,  and  that,  whether 
she  brings  a  fortune  with  her  or  not.  A  common-place  view  of  this 
question  will  put  it  in  the  clearest  point  of  view.  A  woman  indebted 
takes  a  husband  ;  the  law  makes  him  liable,  and  he  pays  them — who  is 


10  SOUTH   CAROLINA   EQUITY   REPORTS.  [*7 

his  debtor  ?     How  will  he  exact  payment  of  the  wife  ?     She  cannot  be 
^g-,  his  debtor.     On  marriage,  he  is  entitled  to  all  her  goods,  *and  an 

-I  estate  for  her  life,  in  her  real  estate.  Her  death  cannot  create  a  debt 
which,  before,  had  no  existence.  This  rule  works,  perhaps,  somewhat 
harshly.  A  wife  may  owe  large  sums,  and  a  corresponding  estate  may  be 
in  expectancy,  which  might  not  come  in  during  her  life,  and  it  would 
seem  a  hardship  that,  if  the  husl)and  paid  the  debts  during  the  coverture, 
he  sliould  not  be  reimbursed.  But  it  will  be  remembered  that  the  hus- 
band takes  the  whole  personal  estate  of  the  wife,  and  an  estate  for  life, 
in  her  lands.  In  the  treaty  of  marriage,  circumspect  i>ersons  look  some- 
times to  the  debtor  and  creditor  sides  of  the  account,  and  the  apparent 
hard.ship  vanishes  when  it  is  recollected  that  the  act  was  voluntary, 

5.  It  is  contended,  also,  for  the  complainant,  that  he  is  entitled  to 
compensation  for  raising  the  children  of  G.  W.  Hopkins,  and  the  young 
negroes  belonging  to  the  estate. 

This  claim  refers  principally  to  Mrs.  Terry's  administration  of  the 
estate  during  her  widowhood.  Mrs.  Terry  had  possession,  and  tlie 
management  of  the  whole  estate,  real  and  personal.  In  the  account 
stated  by  the  Commissioner,  she  is  charged  only  with  the  proceeds  of  the 
crops  sent  to  market,  and  is  credited  with  all  disbursements  made  on 
account  of  the  estate,  without  distinguishing  for  what  particular  object, 
or  for  whose  individual  use.  Slie  herself  raised  no  account  against  the 
children,  or  charge  for  raising  the  young  negroes.  But  it  is  now  brought 
up,  for  the  first  time,  by  the  complainant.  The  annual  income  from  the 
estate  did  not  greatly  exceed  the  necessary  expenditures ;  and  it  is 
evident  that  Mrs.  Terry  herself,  supposed  that  as  they  were  all  subsisting 
in  common,  and  were  all  entitled  to  an  ecjual  distribution  of  the  estate, 
there  could  be  no  great  ine(|uality  in  their  expenditures  ;  and  none 
appears,  from  the  evidence.  But  if  that  were  not  so,  the  children  alone 
would  have  a  right  to  complain  ; — not  the  complainant,  because  he  is 
credited  with  every  dollar  that  was  disbursed  on  account  of  the  estate, 
and  what  more  would  he  have.  Is  it  that  he  is  entitled  to  compensation 
for  Mrs.  Terry's  care  and  iroul)le  in  attending  to  her  own  children  before 
he  married  her  ?  I  will  not  do  him  the  injustice  to  believe  that  was 
intended. 

g^n  6.  It  is  claimed,  also,  for  the  complainant,  that  Ferdinand  ♦Hop- 
kins, Sr.,  ought  to  have  been  charged  with  the  amount  of  a  note  due 
by  H.  Head  and  J.  Kennedy,  say  $274 ; — but  on  what  ground  is  not  stated. 
It  does  a]ipear,  however,  that  he  received  $.30  92  from  H.  Head  ou 
account  of  this  note,  which  is  not  accounted  for.  The  Commissioner 
concludes  that  this  amount  was  ])aid  to  the  widow,  because  he  has  paid 
over  to  her  all  other  moneys  received  by  him,  and  the  necessities  of  the 
estate  required  all  its  means,  and  because  the  widow  managed  it  exclu- 
sively. Knowing  the  jiarties  as  I  do,  if  I  were  left  to  form  a  conjecture, 
I  should  certainly  concur  with  the  Commissioner.  But  we  cannot  pro- 
ceed upon  conjecture. — Ferdinand  Hopkins  did  receive  this  amount,  and 
unless  he  can  account  for  the  payment  by  proof,  he  is  chargeable  with  it. 
But,  if  it  is  desired,  I  think  that  the  subject  ought  to  be  considered  as 
open  for  further  proof,  if  it  can  be  furnished  ;  and  the  Commissioner  is 
ordered  to  re-examine  this  item,  if  further  evidence  shall  be  oU'cred  by 
Mr.  Hopkins. 


*0]  COLUMBIA,    JANUARY,    1833.  H 

7.  It  is  objected,  also,  that  Ferdinand  Hopkins,  Jr.,  the  sou  of  Mrs. 
Terry,  and  one  of  the  defendants,  is  not  charged  with  $400  18|,  received 
by  him  on  account  of  the  crops  of  1816  and  'IT. 

He  was  of  full  aprc,  it  appears  from  the  Commissioner's  Report,  wdieu 
he  received  $260,  part  of  the  amount,  and  the  principal  objection,  on  his 
part,  to  his  liability  to  account,  appears  to  have  been  that  the  plaintiff 
had  uot  in  his  bill  prayed  au  account  against  him.  That  is  true,  but  in 
his  answer,  this  defendant  prays  an  account  from  the  complainant,  of  the 
administration  of  the  estate  of  G.  W.  Hopkins,  by  his  mother,  the  com- 
plainant's intestate  ;  and  this  charge,  if  it  be  allowed,  is  pro  tanto,  a 
legitimate  set  off  against  that  demand,  and  is  a  matter  directly  put  iu 
issue  by  his  own  answer.  He  is,  therefore,  bound  to  render  the  account. 
His  infancy,  when  he  received  a  part  of  the  sum,  is  doubtless  a  protection 
as  to  that,  but  we  will  not  anticipate  that  he  will,  or  that  he  should, 
avail  himself  of  it.  In  order,  therefore,  that  all  the  facts  may  appear, 
we  have  concluded  to  refer  it  back  to  the  Commissioner  to  examine  and 
report  freely  upon  the  subject,  and  it  is  so  ordered. 

This  view  of  the  case  covers,  I  believe,  all  the  questions  *which  ^^^ 
have  beeu  raised  by  the  motion  on  the  part  of  tlie  complainant,  ^ 
and  embraces,  also,  all  the  grounds  which  have  'been  specified  by  the 
defendant.  And  it  is  ordered  and  decreed  that  the  decree  of  the  Circuit 
Court  be  reformed  according  to  the  priucii)les  of  this  decree  ;  and  that 
the  Commissioner  do  state  the  accounts  between  the  parties  conformably 
thereto. 

Martin,  J.,  {siltinfj  for  Harper,  J.,)  concurred. 

O'Xeall,  J.  having  been  of  counsel  for  the  defendant,  gave  no 
opinion. 

Eaves,  for  the  plaintiff. 
WJllmms,  contra. 


Wm.  Newman  and  Wife,  vs.  Peter  II.  Wilbourne,  Exr,  and  Carey 
WiLBouuNE,  Exr'x,  aud  others,  Legatees  of  William  Wilbourne, 
deceased. 

Tlic  doetrinc  of  advancements  applies  solely  to  cases  of  intestacy.  [*11] 

One  legatee  cannot  compel  another  to  account  for  a  debt  due  to  the  estate,  none  but 
the  executor  has  that  right.((/.)[12] 

>Vhere  the  testator  had  loaned  negroes  to  his  son-in-law :  which  he  afterwards  per- 
mitted him  to  sell,  and  to  apply  the  proceeds  to  his  debts;  the  amount  for  whicti 
they  were  sold  will  be  regarded  as  a  loan  without  interest,  until  payment  was 
demanded.  [*l:i]  . 

An  executrix  who  has  no  interest,  is  a  competent  witness  to  prove  a  debt,  where  it 
is  properly  before  a  Court  of  E.|uity  ;  but  if  the  debt  is  recoverable  m  an  action 
at  law,  in  which  she  must  be  the  plaintiff,  this  Court  will  not  permit  her  to  be 
examined,  but  will  send  the  parties  to  a  Court  of  Law  to  establish  the  debt.i_    loj 

Where  delivery  of  possession  is  relied  on,  as  evidenee  of  a  gift,  the  subsequent  dec- 
larations of  the  donor,  will  not  be  competent  to  vary  the  legal  consequences.  [   idj 

The  facts  necessary  to  a  correct  understanding  of  the  points  made  and 


(a)  Farley  v.  Farley,  1  M'C.  Ch.  Rep.  506 ;  Screven  v.  Bostick,  2  lb.  417. 


12                        SOUTH   EQUITY  CABOUXA   REPORTS.  [*10 

decided!               -r.  are  so   '  "~  -  -   ^.    '■    -'-^^  foIlowiDg  decree  of  thU 
Coart.  a-                  ^J  ft""                                -arr. 

CrKiA.  ^  - .- O  JN  EAii.  J.      i.                   T.i  oy  >'  nd  his  wife, 

Cwho  was  '?!;■?  ':*f  the  ohil'iren  a:                   ^  of  the  asuinst  the 


executor 


le- 


nient of  ■  ^^^ 

not  pan  -   were  i-  -ij 

William  '•   -        .  ;"  ^^^^  u:  .    .  -  > 

charge,  that  ihe  said  Wiiiiam  Webb  receired  from  the  said  ^^     :^l. 
Tt'       — -   - -hort  time  before  his  dev-    -"--^  negroes,  to  wii :  T^^i^i^ud 
but   whether  the   Si  s  were   sold  bj  the   said 

e   to  the   said  W  :...^...    Webb,    or  intended   as   an 

-  son-in-law.  thev  are  not  sufficiently  informed  on  the 

■   -  ..11 

ere 

mad  er, 


ren, 

.  - :  the 
r.ns  that 

.    '>^.<:a  "-.aa;_'-:;    -J,    _'....    n.'S'-i':    ■jj    wuV    <_.  .         laent,  tO 

i:  -         ■       •  :   of  the 

e«ta-  ifanj) 

^  'nae. 

:or 

-on 

any 

..  in  his 

.  ..:.  ...  i'.i  J  aeainst 

•le  np  to  June  Term, 

-    on  a  review  of  the 

.  and  that  the  Com- 

-eport  to 

and  at 

hen 

iCt- 

on 


it  has  been,  OTer  and 

r:;   .;.    ;i  •"    -  — '    '    '"^taCT,  a 

:nt  for  i  to  him, 

L.-  -                                                                    '  iCT.  and 

♦JO-  -.-  was  a 

X  ;o  iucconnt  for 

adv., 

I  -^iitT;  .0  luc  cvidcaoc  cuiiiaiiicd  iii  Cuaiiceuor  DeSaossure's 


*12]  COLUMBIA,    JANUARY,    1833.  13 

decree,  with  a  view  of  ascertaining  how  the  fact  really  was.  whether  Tish 
and  her  children  were  or  were  not,  an  advancement ;  and  I  think  it  is 
impossible  to  say  from  it,  whether  they  were  given  or  loaned.     They 
went  into  Webb's  possession  after  his  marriage,  and  were  sold  to  pay  his 
debt,  by  the  consent  of  the  testator,  who  executed  a  bill  of  sale  for  them. 
If  the  bill  had  alleged  that  they  went  into  his  possession  as  a  loan,  and 
this  had  been  the  issae  between  them,  I  should  have  been  contented  to 
resolve  my  doubts  by  the  Chancellor's  decision.     It  is,  however,  alleged 
in  the  bill,  that  they  went  into  his  possession  as  an  advancement,  or  by  a 
sale.     There  is  no  pretence  that  they  were  sold  to   Webb.     It  is  now 
alleged  that  they  were  sold  by  the  testator,  to  pay  Webb's  debt,  and  that 
he  is  therefore  indebted  to  the  testator  in  the  amount  of  their  price,  for 
80  much  money  paid,  laid  out  and  expended  at  his  request.     This  may, 
for  aught  I  know,  be  the  truth  of  the  case  ;  but  there  is  no  charge  in  the 
bill  authorizing  such  a  demand  to  be  set  up.     If  there  had  been,  I  know 
of  no  right  which  one  legatee  has  to  call  upon  another  to  account  for  and 
pay  a  debt  to  the  estate.     Generally  the  executors  at  law  have  an  ample 
remedy  for  the  collection  of  their  testators'  credits ;  in   some  cases  of 
bills,  either  by  or  against  them,  for  a  final  settlement,  they  might  be 
allowed  to  set  up  and  claim  from  a  legatee,  an  account  for  debts  which 
he  owed  to  them  as  executors,  or  to  their  testator,  in  his  lifetime.     But 
to  return  to  the  merits  of  the  charge  against  Webb.     The  decree  assumes 
that  the  negroes  were  loaned  to  Webb  ;  if  so.  it  was  a  loan  without  hire. 
When  was  it  to  terminate  ? — at  the  testator's  death,   or  at  the  time  his 
estate  was  to  be  divided,  or  upon  demand  ?     If  the  loan  of  the  negroes 
was  without  hire,  must  not  the  amount  for  which  they  were  sold  stand 
upon  the  same  footing  as  a  loan  without  interest,   until  payment  was 
demanded  ?     This,  I  think,  must  be  the  result,  unless  there  was  some 
contract  varying  the  legal  effect  of  the  sale  of  the  goods  loaned — none 
appears  to   have  been  proved ;    and  *yet  the  Commissioner  has  r^y^ 
charged  interest  from  the  24th  of   February,  1828.     It  may  be  ^ 
that  payment  was  demanded,  but  I  can  discover  no  evidence  of  a  de- 
mand, until  the  bill  was  filed  in  March.  1831. 

The  evidence  of  the  executrix,  Mrs.  Carey  Wilbourne.  was  competent 
to  prove  the  debt,  due  by  Webb,  if  it  had  been  properly  before  the  Court 
of  Equity  :  for  she  has  no  interest  in  the  residuary  estate,  of  which  it 
would  be  a  part.  But  the  fact,  that  she  may  be  sworn  here,  is,  perhaps, 
a  strong  reason  why  this  Court  should  not  assume  cognizance  of  this  part 
of  the  case,  until  the  debt  is  established  at  law  For  there  she  must  be 
a  plaintiff,  and  could  not  then  be  examined,  as  a  witness.  To  permit  the 
ease  to  be  taken  from  the  Law  Court,  and  brought  into  Equity,  and  then 
to  make  competent,  a  witness  not  competant  at  law.  might  constitute  a 
danfjerous  precedent. 

As  to  the  declarations  of  Mr.  Wilbourne,  that  he  had  not  given  the 
negroes  to  Webb,  that  he  had  only  loaned  them,  or  that  Webb  was  to 
pay,  or  account  for  them,  thev  were  incompetent  evidence.  In  the  case 
of 'Sims  V.  Saunders,  State  Rep.  374,  Judge  Xott  states  the  rule.  He 
says,  "  as  a  general  rule  of  law,  a  person  who  has  made  a  gift,  or  done  any 
other  act,  cannot  be  permitted  to  impeach  it.  by  his  after  declarations. 
If,  therefore,  the  gift  in  this  case  had  been  proved,  the  declarations  of  the 
donor  ought  to  have  been  rejected;  but  the  proof  was  imperfect,  and 


*14] 


14  SOUTH    CAEOLINA    EQUITY   REPORTS.  [*13 

inconclusive.  If  the  plaintiff  had  relied  alone  on  the  evidence  of  the  gift 
and  delivery,  without  resorting  to  subsequent  declarations  on  her  part, 
the  defendant  could  not  have  been  permitted  to  give  such  evidence."  As 
I  understand  this  case,  the  defendants  relied  on  the  fact  of  a  delivery  of 
the  possession,  as  evidence  of  a  gift ;  and  if  so,  no  subsequent  declara- 
tions of  the  testator,  could  be  competent  to  vary  the  legal  consequences. 
From  every  view  of  the  case,  I  am  not  satisfied  to  affirm  the  decree  as 
it  stands ;  it  may  be  that  it  is  right,  but  I  cannot  satisfy  myself  that  it  is 
so,  from  the  lights  which  have  been  afforded.  I  think  the  executor  and 
executrix  ought  to  recover  the  debt  at  law,  and  then  account  to  the  com- 
plainants and  the  defendants,  Webb  and  wife,  for  their  shares  in  this  case, 
in  this  Court. 

*It  is,  therefore,  ordered  and  decreed,  that  so  much  of  the  Chan* 
cellor's  decree,  as  makes  the  defendant,  Webb,  liable  for  the  debt  of 
$150,  with  the  interest  thereon,  be  reversed,  and  that  the  executor  and 
executrix  do  forthwith  proceed  at  law,  to  sue  for,  and  recover  the  same, 
(if  it  can  be  done) — that  until  the  final  decision  of  the  same  at  law, 
and  the  further  order  of  this  Court,  they  be  permitted  to  retain,  in  their 
hands,  the  share  of  the  estate  of  William  Wilbourne  deceased,  to  which 
William  Webb  and  wife  are  entitled  ;  and  if,  upon  the  trial  at  law,  they 
should  recover  the  said  debt,  then,  that  they  do  deduct,  from  the  said 
recovery,  the  said  shares  with  the  interest  which  shall  accrue  in  the  mean 
time  ;  but  if  they  should  fail  to  recover  the  same,  then  that  the  defendants, 
Webb  and  wife,  have  leave  in  this  case,  to  move  the  Circuit  Court  of 
Equity,  for  a  decree  against  the  executor  and  executrix,  for  the  said 
share  and  interest. 

Johnson,  J.  concurred. 

Harper,  J.  absent. 

Po2:)e,  for  the  Plaintiff, 

Bauslcet  &  Wallace,  for  the  defendants. 


John  M.  Maxwell,  Administrator  of  Charles  Maxwell,  deceased,  v. 

Francis  Connor. 

Where  the  payee  of  a  promissory  note,  by  contract  with  the  principal  maker 
extends  the  time  of  payment,  without  the  consent  of  the  surety,  the  latter  is  dis- 
charged, and  he  may  avail  himself  of  this  defence,  in  a  Court  of  Law  ;  but  having 
failed  to  do  so,  he  cannot  afterwards  obtain  relief  in  Equity.  [*15] 

On  the  nth  of  March,  1820,  Charles  Maxwell,  the  plaintiff's  intestate, 
executed  a-promissory  note,  as  one  of  the  securities  of  John  M.  Daven- 
port, to  Ambrose  Edwards  or  bearer,  for  $500,  due  at  twelve  months. 
On  the  31st  day  of  July,  1826,  the  note  being  unpaid,  Edwards  procured 
Davenport  to  execute  to  him  a  mortgage  of  a  tract  of  land,  to  secure  its 
payment;  and  by  covenants  in  the  mortgage,  without  the  knowledge  or 
-J,,  r-|  consent  of  Maxwell,  the  surety,  varied  the  terms  *of  the  note,  by 
-^  extending  the  time  of  payment  to  the  1st  day  of  January  1829. 


*15]  COLUMBIA,    JANUARY,    1833.  15 

Edwards  afterwards  transferred  the  note  to  the  defendant,  Connor,  who 
was  a  witness  to  the  mortgage,  and  he  instituted  suit,  on  it,  ap-ainst 
Maxwell,  in  the  Court  of  Common  Pleas,  in  February,  1829.  On  the 
trial  of  this  action,  in  October,  1830,  Ma,xwell,  for  his  defence,  relied  on 
the  ground,  that  the  payee,  Edwards,  had,  without  his  knowledge  or  con- 
sent, by  the  covenants  of  the  mortgage,  varied  the  term  of  the  note,  and 
that  consequently  he  was  released  from  his  liability.  The  Court  over- 
ruled the  defence,  on  the  ground  that  it  could  only  avail  in  Equity,  and 
not  at  Law.  A  verdict  was  accordingly  rendered  against  Maxwell,  from 
which  no  appeal  was  taken,  and  judgment  was  signed,  and  execution 
lodged.  He  thereupon  filed  his  bill,  setting  forth  these  facts,  and  pray- 
ing a  perpetual  injunction  against  the  proceedings  at  law.  Before  the 
case  came  to  a  hearing,  Charles  Maxwell  died,  intestate,  and  the  present 
plaintiff,  his  administrator,  filed  a  bill  of  revivor.  The  cause  was  heard 
at  Abbeville,  at  June  Term,  1832,  and  the  following  decree  pronounced. 

Johnston,  Chancellor.  I  shall  not  touch  on  the  defendant's  evidence, 
but  shall  decide  the  case  stated  and  made  out  by  the  plaintiff. 

The  plaintiff  states  his  case,  in  the  bill.  His  claim  to  relief,  is,  that 
his  intestate  was  discharged  by  a  contract  extending  time  to  his  principal, 
without  his  intestate's  concurrence.  He  does  not  ask  this  Court  to 
deliver  up  the  paper  securities  to  him,  but  simply  insists  that  his  intestate 
was  discharged  and  released.  All  he  asks,  is,  that  this  Court  should 
declare  him  discharged. 

He  states  at  the  same  time,  that  a  judgment  has  been  obtained,  at  law, 
on  the  contract,  against  intestate ;  which  judgment  must  of  course, 
impliedly  assert  that  he  was  not  discharged  from,  but  bound  by,  the 
contract. 

The  plaintiff,  so  far  from  coming  here  upon  the  ground  of  testimony 
discovered  since  the  trial  at  law,  states  in  his  bill,  that  his  intestate  had 
the  evidence  then,  which  he  has  now,  to  prove  his  discharge,  and  actually 
tendered  it  to  the  Court.  He  has,  in  fact,  offered  no  testimony  here, 
which  has  arisen  since  the  trial  at  law.  There  is  no  pretence  in  the  bill, 
or  suggestion*  in  the  evidence  offered  here,  that  there  was  any  r^-,(> 
lack  of  testimony  at  the  law  trial,  or  that  any  has  been  discovered  ^ 
since. 

This  is  the  plaintiff's  case. 

There  is  no  question  in  my  mind,  that  the  extension  of  credit,  by  the 
payee,  to  the  principal  maker  of  the  note,  is  a  good  discharge  of  the 
surety,  if  made  without  his  concurrence,  and  under  a  valid  contract, 
which  ties  up  the  hands  of  the  payee.  Mere  indulgence  will  not  dis- 
charge him  :  mere  refusal  to  sue,  will  not  discharge  him  Although  there 
are  cases  to  the  latter  effect.  But  an  obligatory  contract  to  extend  time, 
will ;  because  it  is  in  fact,  a  new  contract,  substituting  new  terms  for  the 
old,  and  therefore  discharging  the  old  contract,  and  whatever  discharges 
the  old  contract,  discharges  the  parties  to  it.  At  all  events,  if  the  old 
contract  cannot  be  enforced  against  one,  it  cannot  be  enforced  against 
any  of  the  parties  to  it,  when  all  are  equally  bound. 

But  a  very  material  inquiry,  is,  whether  the  discharge  was  not  as 
available  a  defence  at  law,  as  it  is  here.  The  plaintiff  only  asks  to  be  dis- 
charged, and  the  question  is,  whether  the  Court  of  law  was  not  as  compe- 
tent to  grant  him  that  relief,  as  this  Court.    And  then  follows  the  question, 


16  SOUTH  CAROLINA   EQUITY    REPORTS.  [*16 

whether,  if  the  defence  was  available  at  law,  the  plaintiff  can  be  heard 
here  when  he  states  that  he  has  just  come  out  of  a  trial,  of  the  same  case, 
in  a  competent  tribunal.     Shall  he  have  two  trials  ? 

I  think  it  has  never  been  doubted,  either  by  law  or  equity  Judges,  when 
the  question  has  been  suggested,  but  that  when  the  fact  of  surety-ship 
can  be  reached  at  law,  a  Law  Court  is  bound  as  much  as  a  Court  of 
Equity  to  rule  that  an  extension  of  time,  such  as  is  set  up  in  this  case,  is 
a  full  "discharge  to  the  surety  :  or,  that  when  nothing  is  asked,  but  to  be 
declared  discharged,  a  Law  Court  is  as  competent  to  grant  that  relief,  as 
a  Court  of  Equity.  The  principle  of  discharge  is,  in  its  nature,  a  legal 
principle. 

It  is  difficult  to  conceive  why  a  discharge  should  not  be  a  discharge, 
wherever  presented  ;  whether  in  law  or  equity — there  can  be  no  difference 
in  the  two  Courts  on  principle,  whatever  there  may  be  in  the  mode  of 
ascertaining  the  facts  and  administering  some  of  the  remedies. 
^-.H-]  *I  will  look  to  the  question,  and  see  how  it  stands  on  authority. 
-I  One  or  two  authorities  in  this  Court,  will  suffice  to  show,  that  this 
Court  never  arrogated  exclusive  jurisdiction  of  the  question,  whether  a 
surety  was,  or  was  not  discharged  :  but  has  always  admitted  that  the 
Courts  of  law  have  concurrent  jurisdiction,  when  they  can  ascertain  the 
facts. 

In  Rees  and  Berriugton,  (2  Ves.  540,)  where  the  form  of  paper  security 
was  that  of  a  joint  and  several  bond,  for  the  payment  of  money,  Lord 
Loughborough  says,  "the  form  of  the  security,  forces  these  cases  into 
Equity.  But  take  it  out  of  that  form  ;  and  suppose  in  this  instance,  that 
the  plaintiff  was  a  surety  by  a  proper  bond  at  law  as  surety.  What  is 
the  consequence  ?  Where  a  man  is  surety  at  law,  for  the  debt  of  another, 
payable  at  a  given  day,  if  the  obligee  defeats  the  condition  of  the  bond, 
he  discharges  the  security.  When  they  are  bound  jointly  and  severally, 
the  surety  cannot  aver,  by  pleading,  that  he  is  bound  as  surety.  But  if 
he  could  establish  that  at  law,  the  principal  at  law  is,  that  he  has  an 
interest  in  the  condition,  and  if  the  period  is  extended,  that  totally 
defeats  the  condition  ;  and  the  consequence  is,  the  surety  is  released  from 
his  engagement."     He  adds,  "the  principle  is  a  legal  2}f'inciple." 

When  he  says  "  Suppose  the  plaintiff'  was  a  surety  by  a  proper  bond 
at  law,  as  surety,"  I  understand  him  to  refer  to  a  bond  of  such  form, 
as,  on  its  face,  would  have  shown  the  plaintiff  to  have  been  a  party,  as 
surety  only. 

In  King  v.  Baldwin,  (2  John.  Ch.  Rep.  55*7,)  Chancellor  Kent  says, 
"he,  (King,)  has  made  his  defence,  to  a  recovery  on  the  note,  before  a 
Court  of  comjyetent  Jurisdiction,  upon  the  same  fact,  that  he  now  puts 
forward,  and  that  defence  was  overruled — it  was  observed  by  the  present 
Chief  Justice,  in  delivering  the  opinion  of  the  Supreme  Court,  in  the 
case  of  The  People  v.  Jansen,  (7  Johnson's  Reports,  332,)  that  there 
was  nothing  in  the  nature  of  a  defence  by  a  surety,  to  make  it  peculiarly 
a  subject  of  Equity  jurisdiction,  and  that  whatever  would  exonerate  the 
surety,  in  one  Court,  ought  also  in  the  other.  The  fact  being  ascertained, 
he  observed,  the  rule  must  be  the  same,  in  that  Court,  as  in  the  Court  of 
5,5-^g-j  Chancery.  And  this  was,  undoubtedly,  the  opinion*  of  Lord 
Loughborough,  in  the  case  to  which  the  Chief  Justice  refers." 

In  the  same  case.  Chancellor  Kent  also  refers  to  two  law  authorities 


*18]  COLUMBIA,    JANUARY,    1833.  17 

10  East,  34,  and  1  Bos.  &  Pul.  419  for  the  purpose  of  drawing  from 
them  the  rule,  as  to  what  shall  amount  to  a  discharge  ;  and  squaring  his 
decision  in  Equity,  by  the  law  rule.  Surely  he  would  not  have  done  this, 
if  he  had  not  admitted  that  the  subject  was  one  of  law  cognizance — and 
that  the  rule  was  the  same  in  both  Courts. 

In  our  own  Courts  of  Equity,  in  no  case,  has  such  a  question  been 
raised,  so  that  no  opinion  can  be  gathered  from  our  own  Reporters — but 
unquestionably  higher  authority  than  that  I  have  quoted,  is  not  required, 
when  the  question  is,  as  it  is,  open  in  our  own  Courts. 

We  have  seen  the  opinions  of  Equity  Judges — let  us  now  turn  to  those 
of  Law  Judges.  The  authorities  are  abundant,  and  the  practice  of  law 
Courts  has  been  never  to  turn  away,  but  always  to  take  jurisdiction  of  the 
question,  whether  a  surety  has  been  discharged  by  extension  of  time,  or 
variation  of  the  contract  with  his  principal. 

Nothing  is  more  familiar  than  the  successful  defence  of  acceptors  and 
indorsers,  on  that  ground,  of  whom  Lord  Ellenborough  in  Laseter  v. 
Peat,  2  Camp.  185,  says  "they  stand  as  surety,  and  sureties  to  single 
contracts,  and  are  discharged  by  extending  time  to  their  principals,  with- 
out their  concurrence." 

It  is  vain  to  say,  that  the  defence  of  discharge  to  indorsers  and 
acceptors,  stands  upon  the  principles  of  commercial  law,  difTerently  from 
other  cases.  That  may  be — but  the  question  now  before  us,  is  not 
aflected  by  it.  The  question  is  not  whether  indorsers  and  acceptors  may 
not  be  discharged  by  less  laches,  or  extension  of  time,  than  other  sureties: 
but  the  question  is,  whether  a  discharge  may  not  be  relied  on,  in  a  Court 
of  law,  by  a  surety,  as  well  as  in  this  Court. 

But  there  is  abundant  authority  in  law  Reports,  to  show  that  whatever 
be  the  nature  of  the  security  whether  bond,  note,  or  any  thing  else  ;  if  the 
fact  of  suretyship  can  be  ascertained  at  law,  laches  amounting  to  a  fraud 
on  the  surety,  or  extension  of  time,  by  valid  contract  to  the. principal, 
without  his  assent,  is  a  good  legal  defence  for  the  surety. 

*In  Peel  v.  Tatlock,  1  Bos.  &  Pul.  419,  the  question  was,  r>i;in 
whether  a  fraudulent  concealment,  by  the  obligee  of  a  bond,  of  con-  ^ 
duct  on  the  part  of  the  principal  which  it  was  essential  to  the  surety's 
interest  that  he  should  have  been  apprized  of,  was  a  discharge,  at  law,  of 
the  surety,  and  the  Court  was  prevented  from  holding  the  affirmative, 
only  because  the  fact  of  such  concealment  was  not  established. 

In  this  case,  the  bond  was  for  the  faithful  performance  of  the  principal, 
as  cashier  to  a  banking  house. 

In  the  Trent  Navigation  Company  v.  Harley,  10  East.  33,  and  see  7 
John.  Rep.  338  ;  13  lb.  115,  where  the  defendant  was  surety  to  a  bond, 
for  the  conduct  of  the  company's  cashier,  the  question  was,  whether  the 
laches  of  the  company,  in  not  calling  on  the  cashier,  so  soon  as  they  might 
have  done,  if  the  account  had  been  properly  examined,  from  time  to  time, 
was  an  estoppel  at  law,  as  against  the  surety.  Lord  Ellenborough  said, 
he  knew  of  no  such  estoppel,  at  law,  whatever  remedy  there  might  be  in 
equity. 

It  is  evident,  his  Lordship's  difficulty  was  not,  whether  a  discharge  was 

not  as  good  a  defence  in  law,  as  in  equity  ;  but  whether  that  miglit  not 

amount  to  a  discharge,  in  equity,  which  was  not  sufficient  at  law.     His 

suggestion  has  no  foundation,  either  in  principle  or  authority.     The  case 

YoL.  L— 2 


18  SOUTH   CAROLINA   EQUITY   REPORTS.  [*19 

was  one  of  mere  indulgence,  which  is  no  more  a  discharge  in  equity,  than 
in  law. 

This  case,  whilst  it  establishes  no  distinction  between  the  two  Courts, 
as  to  what  shall  amount  to  a  discharge,  shows  that  the  fact  of  being  dis- 
charged, is  a  legal  defence,  not  questioned  as  such,  and  of  daily  occur- 
rence. 

In  The  People  v.  Jansen,  1  John.  Rep.  332,  already  referred  to,  the 
suit  was  on  a  bond,  given  for  the  conduct  of  the  principal  obligor,  as  loan 
officer  of  a  county  in  New  York :  and  the  question  was,  whether  the 
defendants,  who  repi'csented  one  of  the  sureties,  were  not  discharged  by 
the  laches  of  the  supervisors  of  the  county,  to  prosecute  the  principal  for 
defaults,  as,  by  acts  of  Assembly,  they  were  required  to  do. 
Thompson  J.,  in  delivering  the  opinioa  of  the  Court,  says, 
"The  first  question  is,  whether  the  defendants  can,  in  a  Court  of  law, 
^g,  -|  avail  themselves  of  these  facts,  in  their  defence."  *Here  we  see  the 
-■  very  question,  we  are  now  discussing,  stated.  "I  am,"  he  resumes, 
"unable  to  discover  any  good  reason  for  sending  the  defendants  into  a 
Court  of  Chancery  for  relief.  There  is  nothing  in  the  nature  of  the 
defence,  to  make  it  peculiarly  a  subject  of  equity  jurisdiction :  that  the 
ancestor  of  the  defendants  was  a  surety  only,  appears  upon  the  face  of 
the  bond;  and  whatever  would  exonorate  the  surety,  in  one  Court,  ought 
also,  in  the  other.  The  facts  being  ascertained,  the  rule  of  law  must  be 
the  same  in  this  Court,  as  in  the  Court  of  Chancery.  And  this  seems  to 
be  the  light  in  which  the  subject  was  viewed,  in  the  case  of  liees  i\  Ber- 
rington,  2  Ves.  Jun.  542.  The  doctrine  of  this  case,  clearly  is,  that 
whether  a  surety  has  been  discharged,  or  not,  is  a  legal  princi})le,  and 
that  if  the  form  of  the  security,  and  mode  of  proceeding  at  law,  would 
authorize  an  enquiry  into  the  fact,  whether  security  or  not,  the  defence 
would  be  the  same  at  law,  as  in  equity.  Lord  Loughborough  says,  it  is 
the  form  of  the  security,  which  forces  these  cases  into  equity.  For  when 
the  principal  and  security  are  bound  jointly  and  severally,  the  security 
cannot  aver,  by  pleading,  that  he  is  bound  as  surety :  but  if  he  could 
estabhsh  that  at  law,  the  rule  or  principle,  by  which  his  liability  is  to  be 
determined,  is  a  legal  principle." 

It  would  be  very  extraordinary,  if  a  Laiu  Court  should  be  inhibited, 
while  a  Court  of  Equity  should  be  exclusively  entrusted,  with  the  appli- 
cation of  a  legal  princiiDle  :  when  the  Court  is  asked  to  do  nothing  more 
than  barely  apply  it. 

In  Paine  v.  Packard,  13  John.  R.  lU,  the  defendant  pleaded  spe- 
cially, that  he  signed  the  note,  on  which  he  was  sued,  as  surety  for  one 
Manson,  that  whilst  Manson  was  solvent,  he  urged  the  plaintitf  to  pro- 
ceed against  him,  but  that  he  neglected  to  do  so,  until  Manson  became 
insolvent  and  absconded  ;  on  demurrer  the  plea  was  held  good. 

I  do  not  uphold  this  decision,  so  far  as  it  asserts  that  the  mere  indul- 
gence of  Paine,  in  defiance  of  Packard's  remonstrances,  discharged  Pack- 
ard. But  it  is  good  to  show  that,  "whether  a  surety  has  been  discharged 
or  not,  is  a  legal  principle;"  and  that  the  rule  is  the  same  in  law,  as  in 
equity. 

Indeed,  it  is  not  conceivable  how  there  can  be  any  difference,  if,  as 

*21'1  ^^'^^^'  ^^-  J->  s^ys  :  "the  defence  which  may  be  set  up  [*at  law,] 

-J  of  time   given  to  the  principal,  is  borrowed  from  the  Court  of 


^21] 


COLUMBIA,   JANUAEY,    1833.  19 


Equity."  It  must  be  the  same  in  the  Court  borrowing  it,  as  in  that 
whence  it  was  borrowed  I  rather  incline,  however,  to  think  that  it  is  a 
defence  standing  on  a  legal  principle,  and  that  the  borrowing  was  by  this 
Court. 

Come  whence  it  may,  it  is  now  common  to  both  Courts. 

I  shall  stop  here.  All  these  cases,  both  law  and  equity,  establish  tliat 
Maxwell's  was  a  good  defence  at  law. 

The  only  difficulty  which  ever  forced  such  cases  into  equity,  was  that 
of  arriving,  in  a  law  Court,  at  the  fact  of  suretyship.  Whenever  that 
could  be  established,  the  law  Courts  took  cognizance  of  the  defence. 

In  Peel  v.  Tatlock,  Trent.  N.  Comp'y,  v.  Harly  ;  and  People  v. 
Jansen ;  the  fact  of  suretyship  appeared  on  the  face  of  the  bonds,  whicli 
showed  for  whose  conduct  the  undertaking  was,  and  the  Court  of  law 
accordingly  took  cognizance  of  the  defence. 

In  Paine  v.  Packard,  the  fact  was  admitted  by  the  demurrer,  and  the 
defence  prevailed. 

In  the  case  at  bar,  the  fact  of  suretyship  appears  by  the  character  in 
which  Maxwell  subscribed  the  note.  He  subscribed  as  surety,  and  the 
note  could  never  be  produced  against  him,  wdthout  that  coming  along 
with  it,  to  show  he  w^as  surety  only.  It  is  the  very  form  of  subscription 
which  in  the  case  of  Fulton  v.  Matthews,  1.5  John.  R.  433,  was  con- 
sidered satisfactory  proof  that  Matthews  was  only  surety  for  Wedge,  he 
subscribed  "  Tho.  Matthews,  security." 

I  have  been  more*  solicitous  to  prove  that  the  rule,  as  to  a  surety's 
being  discharged,  was  the  same  in  law  or  equity,  and  that  whatever  was 
a  discharge  in  one  Court,  was,  also,  in  the  other  ;  than  to  establish  that 
the  defence,  set  up  by  Maxwell,  was  good  in  either  Court,  although  the 
cases  show  conclusively  that  it  was  good  in  both. 

I  have  been  less  anxious  on  this  latter  point,  because  if  the  rule  be  the 
same  in  both  Courts,  it  is  perfectly  immaterial  whether  the  defence  Avas 
good  or  bad.  If  good,  it  has  been  before  a  competent  tribunal ;  if  bad, 
the  plaintiff  is  not  entitled  to  relief  here. 

If  the  Court  of  law  was  competent  to  hear  and  determine  *the  defence, 
if  it  had  concurrent  jurisdiction  with  this  Court  of  the  subject  p^.-j^ 
matter,  a»  I  think  I  have  shown,  then  the  plaintiff  states  in  his  bill  L 
he  has  been  before  a  competent  tribunal  :  and  by  that  statement  has 
barred  himself  on  the  face  of  his  own  pleadings  from  relief  here.  The 
defendant  is  under  no  necessity  to  plead  that  which  the  bill  states  and 
pleads  for  him.  The  office  of  defensive  pleas  is  not  to  argue  or  assert 
points  of  law,  but  to  aver  facts,  from  which  the  legal  inferences  follow — 
but  the  legal  inference  is  the  same,  from  the  same  fact,  from  whatever  side 
the  fact  comes  out. 

If  a  defendant  has  been  before  a  competent  tribunal  which  has  pro- 
ceeded io  jxidcjment,  that  decision,  until  7'eversed,  is  conclusive  upon  him 
in  every  tribunal  having  concurrent  or  other  jurisdiction.  It  is  conclu- 
sive upon  him  as  to  every  matter  of  defence,  not  only  presented,  but 
which  could  have  been  presented  by  him  ;  and  it  is  conclusive  upon  him, 
although  the  judgment  be  erroneous,  if  he  acquiesce  in  it,  and  does  not 
proceed  to  reverse  it.  It  is  conclusive  on  him,  because  a  party,  whenever 
he  is  brought  into  a  Court,  is  bound  to  full  diligence,  which  if  he  uses, 
he  will  obtain  his  right.     If  he  neglects,  either  in  putting  in  proper  pleas 


*23] 


20  SOUTH    CAROLINA    EQUITY    REPORTS.  [*22 

or  introducinp:  all  his  evidence  to  support  them,  he  has  no  one  to  blame 
but  himself;  nor  will  his  neglect  in  one  Court  be  allowed  to  give  him  a 
right  to  a  second  trial,  either  in  that  Court  or  another.  If  the  tribunal 
before  which  he  is,  commits  errors  in  deciding,  his  appeal  is  not  to  a 
Court  of  merely  concurrent,  and  not  appellate  jurisdiction,  but  by  that 
tribunal  which  is  by  the  constitution  provided  exclusively  and  expressly, 
for  the  correction  of  errors  ;  and  if  he  neglects  to  prosecute  an  appeal, 
he  must  bear  the  consequences. 

It  is  surely  a  hard  case,  if  a  party  entitled  to  a  relief  in  both  Courts, 
(I  do  not  say  this  plaintiff  is,  because  I  do  not  go  into  an  examination 
of  the  evidence  against  him,)  but  it  is  a  hard  case,  if  a  party  entitled  to 
relief  in  both  Courts  is  repelled  from  both,  and  is  relieved  in  neither. 
But  the  wholesome  rules  of'  law  cannot,  for  that  reason,  be  broken  down. 
In  that  case,  ten  would  suffer  for  the  one  relieved. 

1  Camp  N.  P.  249,  200,  557  ;  1  Chitty,  417.  I  think  the  defence 
offered  was  receivable  at  law,  under  the  general  issue  ;  but  if  that  plea 
would  not  have  covered  it,  it  *was  Maxwell's  business,  (being  at 
liberty),  to  put  in  a  special  plea  that  would  ;  and  I  also  conceive 
that  the  defence,  being  improperly  rejected,  he  ought  to  have  carried  the 
case  up  by  appeal ;  where,  if  I  am  right,  he  would  certainly  have  suc- 
ceeded in  correcting  the  error. 

It  has  been  said  in  argument,  that  because  this  Court  possesses  con- 
current jurisdiction  of  the  defence  presented  at  law,  which  defence  was 
not  effectually  made  there,  this  Court  may  take  it  up*.  One  plain  answer 
is,  that  the  pleas  still  stand  on  the  law  record,  and  that  the  judgment  is 
a  defeat  of  the  facts  pleaded  ;  in  which  must  be  included  every  fact 
which  could  have  been  proved  under  the  pleas.  The  judgment  at  law, 
then,  is  the  judgment  of  that  Court  having  competent  authority  to  render 
it ;  that  Maxwell  was  not  discharged.  This  Court  has  no  right  to 
reverse  that  judgment ;  if  it  should  reverse  it,  we  would  have  two  oppo- 
site judgments  of  equal  authority  and  obligation,  being  judgments  of 
Courts  of  co-equal  and  concurrent  jnri>diction,  both  upon  the  same 
subject  matter. 

Another  answer  is,  that  if  Maxvrell  had  not  put  in  the  pleas  at  all, 
and  had  not  pretended  to  defend  himself  at  law,  he  could  not  be  heard 
here.  He  had  his  remedy  there,  and  the  same  remedy  which  is  now 
asked  here.  A  Court  of  Appeals,  common  to  both  Courts,  rendered  it 
certain  that  the  rules  of  law,  applicable  to  his  defence,  were  the  same  in 
both  Courts.  No  reason  could  therefore  be  offered,  why  he  should  have 
neglected  his  defence  at  law  and  come  into  this  Court,  except  a  mere 
speculation  as  to  the  probability  of  obtaining  a  more  favorable  decision 
on  the  facts  founded  -on  the  different  tempers  of  mind  and  modes  of 
thinking,  of  the  persons  constituting  the  two  Courts.  But  the  corrupt- 
ing effect  of  this,  if  allowed,  every  one  must  see — of  course  the  case  put 
is  hypothetical. 

It  was  said,  however,  that  Maxwell  committed  no  fault,  and  that  inas- 
much as  the   decision  at  law  was  erroneous  in  law,  this  Court  should 
relieve  the  hardship  by  exercising  its  concurrent  jurisdiction. 
*241       •^^^^  ^^®  answer  is,  first,  he  teas  in  fault  for  not  appealing. 

^  Secondly,  this  Court,  for  want  of  appellate  jurisdiction,  *has  no 


*24]  COLUxMBiA,    JANUARY,    1833.  21 

authority  to  reverse  the  law  decisiou,  or  pronounce  whether  it  was  or 
was  not,  erroneous,  with  a  view  to  sustain  or  overrule  it. 

Again,  the  declaration  of  the  law  Court,  that  this  Court  possessed 
exclusive  cognizance  of  the  defence,  could  not  make  it  so ;  it  could 
neither  take  away  its  own  jurisdiction  nor  alter  the  relative  position  in 
which  this  Court  stands  to  that,  which  as  to  the  subject  matter,  is  that  of 
a  Court  of  concurrent  jurisdiction,  bound  by  comity  to  respect  the 
decision  of  the  other  Court  which  first  took  hold  of  the  case. 

Again:  as  a  Court  of  concurrent  jurisdiction,  this  Court  possesses  no 
more  power  to  relieve  from  hardships  growing  out  of  erroneous  decisions 
of  that  Court,  on  a  matter  within  its  jurisdiction,  than  that  Court,  sitting 
at  a  subsequent  time,  possesses.  (7  T.  Rep.  692;  8  lb.  436;  1  John. 
Ch.  Hep.  91,  543;  Johnson's  Cases,  433.)  Now,  if  the  plaintiff,  in 
place  of  filing  this  bill,  had  at  March  Term,  1831,  come  into  the  same 
law  Court,  before  the  same  Judge  who  excluded  the  evidence  at  October 
Term,  1830,  and  satisfied  him  by  an  ample  examination  of  authorities, 
that  the  defence  was  a  good  one  at  law,  and  ought  to  have  been  received, 
could  he  have  vacated  the  judgment  and  ordered  a  new  trial  ?  Not 
without  usurping  the  province  assigned  by  the  Constitution  to  the  Appeal 
Court. 

But  I  am  arguing  a  point  as  well  settled  as  any  in  the  whole  circle  of 
the  law. — Look  to  the  authorities,  and  they  will  show  this. 

From  this  decree  the  plaintiff  appealed,  on  the  grounds  : 

1.  That  the  Chancellor  should  have  entertained  the  bill,  as  the  matters 
set  forth  in  it  were  of  equitable  cognizance  :  and  he  erred  in  ruling  that 
the  defence  at  law  was  available  there,  when  the  contrary  had  been  held 
by  the  Court  of  law. 

2.  That  the  plaintiff,  suing  in  his  representative  capacity,  on  a  demand 
of  his  intestate,  is  not  liable  for  the  costs,  either  personally  or  out  of  the 
estate. 

Noble,  for  the  plaintiff,  cited  and  commented  on  TVayne  v.  Kirby, 
December  Term,  1831 ;  Sherbrook  v.  Russell,  *1  Eq.  Rep.  p^g^ 
315 ;  Executor's  of  Green  v.  Warren's  Executors,  1  Eq.  Rep.  ^ 
430  ;  Butler  v.  Hammond,  2  Eq.  Rep,  226  ;  Kennedy  v.  Gibbs,  lb. 
389,  3  Eq.  Rep.  596  ;  Hampton  v.  Levy,  1  M'C.  Ch.  145  ;  Golphin 
V.  M'Kinney  &  Briethaupt,  lb.  280  ;  Smith  u.  Tunno,  lb,  443  ;  Rees 
V.  Barrington,  2  Yes.,  Jr.,  540, 

Burt,  for  the  defendant. 

Curia,  per  Johnson,  J,  The  mortgage  of  July,  1826,  and  the  cove- 
nants therein  contained,  vary  essentially  the  legal  effect  of  the  note  of 
March,  1820.  According  to  the  note,  the  sum  contained  in  it  was  due 
and  payable  twelve  months  after  the  date,  (March,  1821).  By  the  cove- 
nants contained  in  the  mortgage,  the  payment  is  postponed  until  Janu- 
ary, 1829.  Thus  varied,  it  is  not  the  same  contract  by  which  the  com- 
plainant's intestate  was  bound.  But  the  Court  concur  entirely  with  the 
Chancellor,  for  the  very  satisfactory  reasons  he  has  advanced,  thatthis 
defence  was  available  at  law— that"  his  only  remedy  for  the  error  of  the 
Circuit  Law  Court  in  overruling  the  defence,  was  by  appeal,  and  having 
neglected  to  pursue  that  course,"he  is  not  entitled  to  relief  in  Equity. 


22  SOUTH    CAROLINA    EQUITY    REPORTS.  [*25 

The  Chancellor  has  made  no  special  order  on  the  subject  of  costs. 
The  question  propounded  in  the  second  ground  of  the  complainant  is 
not,  therefore,  before  the  Court,  and  cannot  properly  arise,  except  upon 
motion  to  tax  costs  before  the  Commissioner. 

Motion  dismissed. 

O'x^'eall,  J.,  concurred. 


Mary  Miller,  Administratrix  de  bonis  non  of  Archibald  Miller, 
deceased,  v.  A.  G.  &  E.  0.  Alexander,  Executors  of  Harmon 
Alexander,  deceased. 

In  order  that  the  parties  should  be  bound  by  the  decree  of  the  Ordinary  on  matters 
of  account,  it  should  appear  by  the  proceedings,  that  thej-  were  legally  before  him, 
either  by  citation  duly  served,  or  ai^pearance  by  consent,  set  out  on  the  face  of 
the  decree. [■^27] 

AVhere  an  administrator,  in  the  course  of  his  administration,  on  a  sale  of  his  intes- 
tate's property,  took  a  note  payable  to  himself  as  such,  and  dies  ;  and  adminis- 
tration dc  bonis  non  is  granted,  altliough  the  legal  right  to  the  note  is  in  the  first 
administrator,  yet  the  equitable  right  is  in  the  administrator  dc  bonis  non;  and  if, 
on  a  final  settlement  of  accounts,  the  amount  of  the  note  appears  to  be  due  from 
the  estate  of  the  first  administrator,  the  administrator  de  bonis  non  will  be  entitled 
to  the  possession  of  the  note.[*29] 

Curia,  per  O'Neall,  J.  The  unfortunate  destruction  of  the  Circuit 
^()a-\  clecree  by  fire,  has  created  some  embarrassment  to  *this  Court,  in 
-I  ascertaining  both  the  facts  of  the  case  and  the  grounds  on  which 
the  decree  was  predicated.  It  is,  on  this  account,  necessary  that  a 
summary  of  the  facts  which  we  regard  to  be  important,  should  be  made, 
in  order  that  the  opinion  to  be  expressed  may  be  fully  understood. 

It  appears  that  Archibald  Miller  died  intestate,  leaving  no  issue  but  a 
father  or  mother,  one  brother  and  three  sisters,  his  only  heirs  and  next  of 
kin  him  surviving.  The  defendants'  testator  administered  and  sold  his 
personal  estate  :  at  that  sale  Sarah  JNIiller  and  the  complainant,  who 
were  two  sisters,  and  heirs  of  the  intestate,  purchased  to  the  amount  of 
five  hundred  dollan's,  and  for  the  payment  of  this  sum  gave  their  note, 
under  seal,  to  the  defendants'  testator.  Upon  some  occasion,  and  with 
a  view  to  settle  with  a  part  of  the  distributees,  the  defendants'  testator, 
and  the  complainant,  went  before  the  Ordinary  of  York  District,  and  he 
made  a  statement  of  the  accounts  of  the  administrator,  in  which  he 
omitted  to  charge  the  defendants'  testator  with  the  interest  actually  paid 
or  due  on  notes,  including  the  one  now  in  dispute,  which  he  held  an 
account  of,  and  as  assets  of  the  intestate's  estate. — By  this  statement  he 
ascertained  the  share  of  each  distributee,  and  decreed  it  to  be  paid  by  the 
administrator.  This  statement  of  the  accounts  and  decree  was,  however, 
entirely  ex  parte  ;  no  citation  was  issued,  and  none  of  the  distributees, 
except  Mary  Miller,  were  present.  Under  it,  however,  some  of  them 
gave  receipts  for  the  sums  at  which  their  shares  were  erroneously  stated 
by  the  Ordinary.  Soon  after  this  transaction,  Harmon  Alexander  died, 
leaving  a  will,  of  which  the  defendants  are  the  executors.     Mary  Miller, 


*26]  COLUMBIA,    JANUARY,    1833.  23 

supposing  herself  as  one  of  the  heirs  of  her  brother,  and  as  agent  for  the 
others,  to  be  entitled  to  the  note  of  herself  and  her  sister,  which  she 
knew  to  be  a  part  of  the  assets  of  his  estate,  possessed  herself  of  it. 
The  defendants  filed  a  bill  in  the  Court  of  Equity  against  her  for  a  dis- 
covery, and  to  compel  her  to  restore  it  to  them.  In  the  meantime,  she 
took  out  letters  of  administration  de  bonis  non,  on  her  brother's  estate. 
And  in  her  answer  she  claimed  to  be  allowed,  as  administratrix  de  bonis 
non,  to  retain  it.  This  Court,  on  an  appeal  from  the  Circuit  decree  in 
her  favor,  thought  that  she  could  not  be  permitted  *to  put  the  com-  j-^^j^ 
plainants  to  proof  of  their  right  to  the  note,  in  showing  that  upon  a  L 
final  settlement  of  the  accounts  of  their  testator's  administration,  that  the 
sum  which  it  secured  to  be  paid,  would  be  due  and  owing  to  him ;  but  that  it 
devolved  upon  her  to  be  the  actor,  and  to  prove  from  the  accounts  of  the 
testator's  administration,  that  he  was  in  arrear  to  her  intestate's  estate, 
the  amount  of  the  note  ;  and  for  the  purpose  of  carrying  these  views  into 
effect,  decreed  that  she  should  deliver  the  note  to  (the  then  complainants) 
the  present  defendants,  unless  she  should  within  three  months  after  notice 
file  a  cross-bill  for  the  discovery  of  facts  necessary  to  her  defence,  and 
prosecute  the  same  to  a  final  decree  with  all  convenient  dispatch.  Under 
this  decree  this  bill  was  filed,  and  the  discovery  of  the  accounts  of  the 
defendant's  testator,  with  the  estate  of  Archibald  Miller  (deceased)  made, 
and  the  same  were  referred  to  the  Commissioner  for  his  report.  He 
reported,  "that  upon  a  careful  investigation  of  the  whole  matter,  he  is 
satisfied  that  the  whole  amount  of  the  complainant's  note  in  dispute,  with 
the  interest,  and  a  balance  of  $17  23"  cash,  in  the  hands  of  the  defend- 
ant's testator,  "  is  justly  due  the  estate  of  Archibald  Miller,  deceased." 
The  case  was  heard  at  June  Term,  1831,  and  the  Chancellor  (Johnston) 
dismissed  the  cross-bill.  During  the  pendency  of  the  original  and  cross- 
bills, the  defendants  sued  at  law  on  the  note,  and  at  Spring  Term,  1832, 
of  the  Court  of  Common  Pleas,  recovered  judgment  on  the  note  against 
the  complainant  Mary  Miller,  Sarah  Miller  and  Major  T.  Hall,  the 
obligors. 

Out  of  these  facts  arise  two  questions ;  first,  does  the  statement  of  the 
accounts,  and  the  decree  by  the  Ordinary,  conclude  the  complainant  from 
demanding  in  the  Court  of  Equity  an  account  of  the  administration  of 
Harmon  Alexander,  on  the  estate  of  Archibald  Miller  (deceased?) 
Secondly,  if  it  does  not,  then  is  she,  as  administratrix  de  bonis  non, 
entitled  to  receive  from  the  defendants  whatever  balance  their  testator  is 
in  arrear  to  his  and  her  intestate  ? 

1.  I  entertain  no  doubt  that  the  statement  of  the  accounts  and  decree 
by  the  Ordinary,  is  not  conclusive  between  the  parties.  It  was  wholly 
an  ex  2Jarie  proceeding,  made  up  entirely  at  the  instance  of  the  adminis- 
trator, to  enable  him  to  settle  with  his  cestui  que  trusts.  In  order  to  be 
conclusive,  it  ought  to  *be  the  judgment  of  the  Court,  between  r-^^^ 
parties  regularly  in  Court  on  the  same  matter,  then  in  issue 
between  them,  which  is  at  present.  It  would  then  operate  as  an  estoppel 
between  parties  and  privies  in  estate  or  in  law.  But  before  it  can  have 
this  effect,  it  must  appear  by  the  proceedings  had  before  the  Ordmary, 
that  the  parties  to  be  effected  by  it  were  legally  in  Court.  _  This  can 
only  be  done  by  a  citation  duly  served  and  returned  to  the  Ordniai-y  ;  or 
by  an  appearance  of  the  parties,  by  consent,  set  out  and  appearing  on 


24  SOUTH   CAROLINA   EQUITY   REPORTS.  [*28 

the  face  of  the  decree. — No  citation  was  issued  either  to  bring  in  the 
administrator  to  account  or  to  require  the  heirs  to  attend  the  settlement 
of  his  accounts,  no  consent  appears  to  have  been  given  to  any  judicial 
determination  by  the  Ordinary.  Mary  Miller  was  in  his  office  when  he 
commenced  the  statement,  but  it  does  not  appear  that  she  was  present 
when  he  wrote  his  decree,  or  that  she  expected  him  to  do  so.  It  is, 
however,  sufficient  to  say  that  from  the  decree  it  does  not  appear  that  she 
was  a  party  to  it  by  consent.  There  can  be  no  doubt  that  she  expected 
the  Ordinary,  as  any  other  accountant,  to  ascertain  her  share  from  the 
papers  before  him,  leaving  her  at  liberty  to  review  and  correct  his  errors. 
None  of  the  other  heirs  were  present,  or  in  any  way  assenting  to  the 
decree,  and  as  against  their  rights,  it  cannot  be  pretended  that  it  could 
have  any  operation.  In  the  complainant's  character  of  administratrix 
de  bonis  non,  she  now  represents  the  intestate,  and  upon  her  rights  in 
that  character,  whatever  they  may  be,  a  decree  made  by  the  Ordinary 
before  the  former  administration  ended,  and  therefore  before  she  was 
clothed  with  the  present  powers,  can  have  no  effect.  The  conclusiveness 
of  the  decree  of  the  Court  of  Ordinary  when  regularly  made  upon  all 
matters  of  account  embraced  by  it,  in  the  Court  of  Equity,  is  matter  of 
doubt.  Errors  apparent  upon  the  face  of  it  ought  to  be,  and  I  should 
think  might  be,  corrected.  If  a  party  who  has  obtained  a  decree  of  the 
Court  of  Ordinary,  has  to  ask  the  Court  of  Equity  to  give  it  effect,  the 
Court  will  examine  the  accounts  upon  which  it  is  based,  and  give  relief 
according  to  the  right  of  the  case.  The  case  of  M'Cullough  v.  Daniel, (a) 
*29"1  ^^Po^'ted  in  part,  in  State  Equity  *Ilep.  255,  and  finally  decided  by 
-'  the  Court  of  Appeals,  May  Term,  1828,  is  an  illustration  on  this 
position.  If  a  decree  was  obtained  by  fraud  or  collusion,  it  might  be 
reviewed  and  relief  granted  by  the  Court  of  Equity.  If  it  was  necessary 
for  the  purposes  of  this  case,  the  complainant  might,  I  think,  under  the 
head  of  either  error  apparent  on  the  face  of  the  decree,  or  the  fraud  of 
the  administrator,  have  relief  against  it.  For  it  is  manifest  on  the  face 
of  the  decree  that,  the  interest  which  ought  to  have  been,  is  omitted  to  be 
charged.  This  omission,  too,  was  occasioned  if  not  by  the  moral,  at 
least  by  the  legal  fraud  of  the  administrator  :  he  withheld  from  the  Ordi- 
nary the  facts  that  he  had  received  interest,  and  that  interest  was  due  on 
the  notes  which  he  then  had  on  account  of  the  estate.  But  neither  of 
these  views  are  necessary  for  the  purposes  of  this  case  :  the  decree  is  not 
conclusive  against  the  complainant,  inasmuch  as  she  was  not  a  party  by 
process  or  consent.  It  is  in  this  point  of  view  nothing  more  than  a 
statement  of  the  accounts  between  the  parties  to  which  such  receipts  as 
were  given  have  reference.  This,  it  is  supposed,  is  a  discharge  to  the 
administrator.  A  receipt  has  never  been  supposed  to  have  the  effect  of 
a  release.  It  is  nothing  more  than  the  evidence  of  so  much  paid  ;  and 
when  it  purports  to  be  in  full,  it  devolves  upon  the  party  who  signs  it 
the  burthen  of  showing  error  or  mistake  in  the  settlement  on  which  it  is 


(a)  M'Cullough  v.  Daniel,— This  vs-as  a  bill  to  enforce  a  decree  of  the  Ordinary 
against  the  defendant  as  executor,  to  which  he  was  a  party  by  citation,  and  from 
which  he  had  not  appealed.  The  Court  ordered  an  account  before  the  Commissioner, 
without  regard  to  the  Ordinary's  decree — the  Commissioner  made  a  report  in  favor 
of  the  defendant,  which  was  finally  confirmed  by  the  Court  of  Appeals,  and  the  bill 
dismissed. 


^29] 


COLUMBIA,    JANUARY,    1833.  25 


predicated.  This  has  been  done  in  this  case,  by  showing  the  errors  in 
the  Ordinary's  statement  of  the  accounts,  and  which  he  himself  admitted 
he  had  made,  by  the  administrator's  withholding  the  facts  from  iiira. 

2.  The  complainant,  as  administratrix  de  bonis  non,  is  entitled  to  all 
the  goods,  chattels,  and  credits,  of  her  intestate,  which  were  not  admin- 
istered by  the  former  administrator.  This  is  conceded ;  but  it  is  said,  all 
of  the  goods,  chattels  and  credits  of  the  intestate,  were  administered  by 
Harmon  Alexander,  and  therefore  the  complainant  is  not  entitled  to  re- 
cover. It  is  true,  the  administrator  did,  in  a  course  of  administration, 
sell  the  goods  and  chattels,  and  collect  and  receive  the  credits  of  his  in- 
testate— these  were  acts  of  partial*  administration — he  thereby  r^on 
charged  himself  with  the  nett  proceeds,  as  so  much  money  belonging  L 
to  his  intestate,  out  of  which  he  was  first  to  pay  debts  and  expenses,  and 
the  balance,  if  any,  to  distribute  and  pay  to  the  respective  distributees. 
It  may  be,  and  very  probably  is  true,  that  he  paid  the  debts  and  ex- 
penses ;  but  the  balance,  now  reported  against  him,  was  the  money  of  his 
intestate,  still  in  his  hands  to  be  administered.  Upon  his  death,  his 
legal  right  to  retain  it  ceased  ;  and  upon  the  grant  of  administration  de 
bonis  non,  it  passed  as  the  goods,  chattels,  andvcredits  of  the  deceased, 
unadrainistered  by  the  administrator,  Harmon  Alexander,  deceased,  to 
the  complainant.  This  legal  right  to  receive  the  unadministered  balance 
of  money,  in  the  hands  of  Harmon  Alexander,  or  rather  his  executors, 
did  not  make  her  the  legal  owner  of  the  note  in  dispute.  That,  legally, 
belonged  to  the  administrator,  to  whom  it  was  payable  ;  and  after  his 
death,  the  right  of  action  upon  it  passed  to  his  executors.  For  it  was  a 
personal  contract  made  with  the  administrator,  and  for  its  amount  he 
was  personally  liable  to  his  intestate's  estate.  His  executors  could  de- 
mand and  enforce  payment  of  it.  At  law,  it  could  not  be  averred  that 
the  proceeds,  when  collected,  could,  of  right,  belong  to  the  obligors,  or 
one  of  them.  For,  over  the  accounts  of  the  administrator,  or  his  con- 
sequent liability  to  the  distributees,  that  Court  has  no  jurisdiction.  It 
merely  looks  to  the  legal  rights,  and  not  to  any  equities  which  may  exist. 
This  is  the  extent  of  the  doctrine  contained  in  the  case  of  Seabrook  ads. 
Williams,  3  M'C.  3tl.  It  never  was  intended  to  be  said,  in  that  case,  that 
because  an  administrator  de  bonis  non  could  not  sue  on  a  note  given  to  the 
first  administrator,  that,  therefore,  he  would  not  be  entitled  to  recover,  in 
Equity,  any  unadministered  balance  which  migh  be  in  the  hands  of  the 
first  administrator.  There  can  be,  therefore,  no  doubt  that  the  com- 
plainant is  entitled  to  recover  from  the  defendants  whatever  sura  their 
testator  is  in  arrear  to  the  estate  of  Archibald  Miller,  deceased.  Not- 
withstanding the  complainant  has  no  legal  right  to  her  own^  and  her 
sister's  note,  yet  in  Equity  she  may  have  the  amount  to  be  paid  her  by 
the  defendants'  set  off  against  it;  and  if  the  sum  *due  her  is  equal  p,^^ 
to,  or  exceeds  the  amount  of  the  note,  if  it  was  in  their  possession^ 
she  would  have  the  right  to  have  it  delivered  to  her  ;  and  if  (as  is  the 
case)  it  is  in  her  possession,  she  would  have  the  right  to  retain  it.  The 
judgment  at  law,  predicated  upon  it,  under  such  circumstances,  cannot 
be  allowed  to  be  enforced.  At  law,  the  defendants  are  entitled  to  the 
note  and  the  judgment;  but  in  equity,  she  is  entitled  to  receive  from  them 
the  proceeds.  She  cannot,  therefore,  be  compelled  to  pay,  with  one 
hand,  a  sum  which  she  is  entitled  to  receive  with  the  other.     This  con- 


26  SOUTH   CAROLINA    EQUITY   REPORTS.  [*31 

elusion  is  in  accordance  with,  and  sustained  by  the  former  opinion  of  this 
Court,  in  the  case  of  the  Executors  of  Harmon  Alexander,  deceased,  v. 
Mary  Miller.  For,  in  that  case,  the  Judge  (Johnson)  who  delivered  the 
opinion,  says  : 

"  The  note  or  bill,  the  subject  of  this  suit,  being  the  evidence  of  a  per- 
sonal contract  with  the  complainants'  testator,  they  are  doubtless  entitled, 
jjrima  facie, to  the  possession  of  it ;  and  the  foundation  of  the  right  claimed 
by  the  defendant,  to  retain  it,  is,  that  the  fund  intended  to  be  secured  by 
it,  probably  belongs  to  the  estate  of  Archibald  Miller,  deceased,  and  that, 
as  administratrix  de  horn's  non,  she  is  entitled  to  the  possession  and  dis- 
position of  it ;  and  if  this  be  true,  there  can  be  no  doubt  that  Equity 
would  not  interpose  :  for,  admitting  that  the  possession  of  the  bill  would 
entitle  the  complainants  to. recover  at  law,  yet,  they  would  be  bound  to 
account  to  her,  in  Equity,  for  it,  and  an  order  for  its  delivery  would 
drive  the  parties  to  that  circuity  of  action,  to  prevent  which  is  one  of  the 
most  useful  branches  of  Equity  jurisdiction." 

It  is  therefore  ordered  and  decreed,  that  the  decree  of  the  Chancellor 
be  reversed  ;  that  the  complainant  Mary  Miller  as  administratix  de  bonis 
non  of  Archibald  Miller  deceased,  be  permitted  to  retain  the  note  in  dis- 
pute ;  that  she  do  charge  herself  with  the  amount  thereof,  including  prin- 
cipal and  interest,  in  her  accounts  on  the  estate  of  Archibald  Miller 
(deceased),  in  the  Ordinary's  of3Sce  of  York  District ;  that  the  defendants 
Albert  G.  Alexander  and  Eli  O.  Alexander,  executors  of  Harmon 
Alexander  deceased,  be  perpetually  enjoined  from  enforcing  the  judgment 
^221  recovered  by  them  at  law,  against  Mary  Miller,  *Sarah  Miller  and 

"-"  Major  T.  Hall,  on  the  said  note;  that  the  said  defendants  do,  out 
of  the  estate  of  their  testator,  pay  to  the  complainant  the  sum  of  $17  23 
reported  by  the  Commissioner,  with  the  interest  thereon  ;  and  that  they 
do  also,  out  of  the  estate  of  their  testator,  pay  the  cost  of  the  cases  both 
in  Equity  and  at  law. 

Johnson,  J.,  concurred. 

Harper,  J.,  absent. 

Sogers  for  the  plaintiff. 

Williams  for  the  defendant. 


Wm.  McElwee  v.  Geo.  Sutton  &  Wm.  Black. 

Where  a  bill  is  for  discovery  and  relief,  in  a  case  where  discovery  is  the  only  ground 
of  Equity  jurisdiction,  it  must  be  sworn  to  ;  but  if  the  bill  is  for  discovery  merely, 
no  afiidavit  is  necessary.  [*33] 

As  a  general  rule,  the  plaintiff  in  a  bill  for  discovery  is  required  to  pay  the  costs  ; 
but  if  he  asks  a  discovery  from  the  defendant  before  tiling  the  bill,  who  refuses  it, 
and  he  is  compelled  to  come  into  Equity,  the  defendant  will  not  be  allowed 
costs.  [*34] 

This  was  a  bill  for  the  discovery  of  facts,  to  enable  the  plaintiff  to  pro- 
secute at  law  his  action  of  trover  against  these  defendants.  It  was  not 
sworn  to,  nor  accompanied  with  an  affidavit  that  the  facts  charged  could 


*32]  COLUMBIA,   JANUARY,    1833.  27 

not  otherwise  have  been  proved  or  obtained.  The  defendant,  Sutton, 
had  been  applied  to  before  the  filing  of  the  bill,  for  a  discovery  of  the  facts 
sought  for,  which  he  then  refused  to  make,  but  which  afterwards  in  his 
answer  he  did  make.  The  defendant  Black  had  not  been  applied  to  for  a 
discovery,  before  bill  filed,  and  in  his  answer  he  denied  the  facts 
material  to  the  plaintiff's  action. 

The  case  was  heard  before  Chancellor  Johnston,  at  York,  June  Term, 
1831,  who  decreed  that  Sutton  should  pay  all  the  costs.  From  this  de- 
cree an  appeal  was  taken  on  the  grounds  : 

1.  That  there  was  no  affidavit  to  the  truth  of  the  facts  charged  in  the 
bill,  or  that  the  discovery  could  not  otherwise  be  obtained. 

2.  That  the  defendant  Sutton  ought  not  to  pay  the  costs  of  his  co-de- 
fendant, Black,  but  that  they  should  be  paid  by  the  complainant. 

*0']S'eall,  J.  The  rule  seems  to  be  where  a  bill  is  filed  for  dis-  r^oo 
covery  and  relief,  in  a  case  where  the  discovery  is  the  only  ground  L 
of  Equity  jurisdiction,  that  the  party  must  file  with  his  bill,  an  affidavit 
of  the  truth  of  the  statements  contained  in  it.  In  such  a  case,  "  the 
affidavit  must  state  that  the  deeds  or  writings  of  which  the  plaintiff  seeks 
a  discovery,  are  not  in  the  custody  or  power  of  the  plaintiff,  and  that  he 
knows  not  where  they  are,  unless  they  are  in  the  hands  of  the  defendant." 
"  But  where  a  bill  is  for  discovery  merely,"  no  affidavit  is  necessary. 
Coop.  Plead.  61.  In  this  case  the  bill  was  filed  for  the  discovery  of  facts 
in  the  knowledge  of  the  defendants  alone,  as  ancillary  to  the  party's 
remedy  at  law,  and  not  for  any  relief  beyond  it.  In  such  a  case  no  affi- 
davit was  necessary.  But  if  it  had  been,  the  defendants  could  only  have 
availed  themselves  of  the  want  of  it  by  demurrer.  After  answering,  it  was 
too  late  to  raise  tlie  objection. 

The  general  practice  of  the  Courts  of  Chancery,  is  to  require  the  plain- 
tiff in  a  bill  for  discovery  merely,  to  pay  the  costs.  But  in  the  case  of 
Weymouth  v.  Boyer,  1  Yes.  Jun.  423,  Mr  Justice  Buller  sitting  for  the 
Lord  Chancellor,  suggested  a  reasonable  and  proper  exception  to  the 
general  rule.  He  said,  "  as  to  the  costs,  I  am  aware  that  it  is  the  prac- 
tice of  this  Court,  that  if  a  plaintiff  comes  for  a  discovery,  when  he  has  it, 
he  shall  pay  the  costs ;  but  I  think  the  rule  as  expressed  is  too  general, 
and  if  ever  a  case  arises  when  I  sit  here,  nnder  circumstance  which  I 
think  a  proper  ground  for  withholding  the  costs,  I  shall  put  the  parties 
to  reconsider  the  question.  By  a  proper  case,  I  mean  this — if  the  plain- 
tiff is  entitled  to  the  discovery,  and  goes  first  to  the  defendant  to  ask  for 
the  accounts  he  has  in  justice  a  right  to  ;  if  the  defendant  refuses,  and  the 
plaintiff  is  thereby  compelled  to  come  here  for  the  discovery,  I  would  not 
give  the  defendant  costs.  If,  on  the  other  hand,  the  plaintiff  thinks  fit  to 
file  his  bill  without  trying  first  to  get  the  discovery  in  that  way  in  which 
men  acting  with  each  other  ought  first  to  ask  their  rights,  1  think  he 
ought  to  pay  the  costs."  This  exception,  reasonable  as  it  appears  to  be, 
has  not  received  the  settled  sanction  of  the  English  Court  of  Chancery  ; 
for  Cooper  in  his  treatise  on  Equity  pleading,  61,  speaks  of  the  exception 
as  a  mere  dictum.  *In  this  State,  I  know  no  case  in  which  any  rule  p^^^ 
has  been  settled  by  the  Court  of  Appeals,  as  to  the  costs  of  a  bill  L 
of  discovery.  Costs  in  the  Court  of  Equity  are  generally  regarded  as  so 
much  a  matter  of  discretion,  that  it  is  rarely  the  Circuit  decision  is 
disturbed.    In  the  case  of  Whitney  &  Parsons  u.  R.  T.  &  John  S.  Cates, 


28  SOUTH    CAROLINA    EQUITY    REPORTS.  [*34 

Chancellor  Thompson,  on  its  appearing  that  the  defendants  had  refused 
to  make  any  discovery  before  the  liill  was  filed,  and  when  their  answer  ad- 
mitted all  the  allegations  of  the  bill  charging  a  gross  fraud,  gave  the 
complainants  their  costs.  That  was,  however,  an  extraordinary  case,  and 
ought  not  perhaps  to  constitute  a  precedent  for  a  departure  from  the 
general  rule. 

I  am,  however,  prepared  to  adopt  the  exception  of  Mr.  Justice  Buller. 
For  it  is  an  outrage  upon  justice,  to  say  that  he  who  compels  another  to 
come  into  this  Court,  should  saddle  him  with  his  costs.  On  the  other  hand, 
it  is  perhaps  wise  not  to  afford  encouragement  to  bills  for  discovery  merely, 
by  giving  costs  to  the  plaintiff.  It  might  be  the  means,  were  the  rule 
otherwise  than  it  is,  to  bring  many  needless  bills  of  this  kind  into  the 
Court.  As  I  have  before  said,  costs  are  generally  within  the  discretion 
of  the  Chancellor  ;  but  where  there  is  a  fixed  rule  on  the  subject,  it  must 
be  conformed  to.  In  the  case  before  us,  the  complainant  did  require 
from  the  defendant,  Sutton,  but  not  from  the  other  defendant,  Black,  the 
discovery,  before  filing  his  bill ;  and  under  the  exception  which  I  hcive 
just  stated,  each  party  should  have  paid  his  own  costs,  except  the  costs 
of  the  defendant  Black  ;  his  costs  ought  to  be  paid  by  the  complainant, 
and  the  Circuit  decree  is  accordingly  so  modified. 

Johnson  and  Harper,  Js.,  concurred. 

Rogers,  for  the  appellant. 

Williams,  contra. 


}5] 


*Elijah  Hinson,  and  Wife,  as  tenants  in  remainder  under  the 


will  of  James  Perry,  dec'd.,  and  Elijah  Hinson,  as  Adm-r.  of 
Philemon  Starke,  dec'd.,  v.  James  B.  Pickett. 

John  J.  Myers,  Adm'r.  of  Baldy  II.  Starke,  deceased,  v.   James  B. 

Pickett. 

A  bequest  of  personal  property  in  the  following  words,  "  I  lend  to  my  daughter,  P. 

S.,  four  negroes  [naming  them]  during  her  natural  life,  and  theu  to  the  heirs  of 

her  body,"  vests  the  absolute  estate  in  the  first  taker. [*37] 
The  term  '  lend'  in  a  bequest  will  be  considered  synonymous  with  "^we,"  unless  it  is 

manifest  that  the  testator  did  not  intend  the  le^al  estate  to  pass  to  the   lega- 

tee.[^;-38] 
After  a  bequest  to  P.  S.,  during  her  natural  life,  a  limitation  over  to  the  heirs  of  her 

body,  enlarges  the  life  estate  into  au  absolute  one,  unless  the  remainder  can  take 

effect.  [*39] 
Effect  of  the  word  "  then,'"  in  such  a  bequest  [*39] 

The  appointment  of  executors  in  a  will  "  for  the  intents  and  purposes  therein  con- 
tained," will  not  control  the  legal  effect  of  words  creating  a  limitation  over  to  the 

heirs  of  one's  body.[*39] 
The  Court  of  Equity  will  entertain  jurisdiction  of  a  bill  by  an  administrator  against 

a  distributee  in  possession,  or  one  claiming  under  him,  in  order  to  prevent  circuity 

of  action,  and  to  enable  the  latter  to  set  up  an  equitable  demand  against  the  estate. 
Where  a  defendant  is  in  possession  of  property,  which  is  claimed  in  different  rights, 

by  two  plaintiffs  in  separate  bills  against  him ;  the  Court  of  Equity  will  entertain 

jurisdiction  of  both  cases,  and  decide  in  favor  of  the  paramount  title,  in  order  to 

prevent  further  litigation  between  tlie  parties. [*42] 
Existing  equities  between  the  parties,  will  give  jurisdiction  in  Equity  ;   and  if  the 

Court  can  see  that,  after  sending  the  plaintiff  to  law,  the  defendant  will  bring  him 


*35]  COLUMBIA,    JANUARY,    1833.  29 

back  to  set  up  his  equity,  the  Court  ■will  retain  the  bill,  and  decree  at  once  on 
the  questions  made.[*-12] 

The  effect  of  two  separate  bills  for  the  same  property  being  tried  together,  and 
decided  by  one  decree,  is  the  same  as  if  all  the  matters  contained  in  both,  had 
been  stated  in  one  ;  and  the  cases  may  be  consolidated.  [*43] 

Where  the  defendant  is  in  possession  of  personal  property  as  tenant  -per  outer  vie, 
Equity  will  entertain  jurisdiction  at  the  instance  of  the  remainder-men,  in  order 
to  compel  him  to  give  security  for  the  forthcoming  of  the  property,  if  there  has 
been  any  attempt  to  remove  it;  and  the  defendant  cannot,  in  such  case,  defeat 
the  jurisdiction  of  the  Court,  by  setting  up  a  paramount  legal  title  in  one  of  the 
plaintiffs.  [*44] 

Where  one  who  was  a  distributee  of  an  estate  conveyed  certain  slaves  of  his  ances- 
tor \)y  bill  of  sale,  in  which  no  words  are  used  descriptive  of  his  distributive  share, 
and  before  administration,  when  he  had  no  legal  interest ;  the  distributive  sliare 
does  not  pass  to  the  vendee  ;  but  if  the  vendee  has  advanced  money,  in  satisfaction 
of  a  debt  due  by  the  intestate,  he  may  be  subrogated  to  the  rights  of  the  creditor, 
whose  debt  he  has  paid.[*45] 

Decretal  orders.  [*46] 

€uRiA,  per  O'Neall,  J.  These  cases  relating  to  the  same  property, 
were  heard  looth  on  the  Circuit  and  in  the  Court  of  Appeals  together, 
and  the  questions  arising  out  of  them  will  be  considered  as  if  they  arose 
out  of  one  case.  It  will  be  useful  to  state  briefly  the  facts  upon  which 
we  are  required  to  pass  an  opinion. 

Philemon  Starke,  about  the  year  1800,  intermarried  with  Margaret, 
the  daughter  of  James  Perry.  According  to  the  testimony  of  one  wit- 
ness Rebecca  Graham,  the  negroes  now  in  dispute,  or  the  parents  of 
of  them,  went  into  their  possession  after  their  marriage,  being  sent  by 
James  Perry  to  his  son-in-law  and  daughter.  On  the  14th  of  April,  1806, 
James  Perry  made  and  executed  his  last  will  and  testament,  in  which  is 
contained  the  following  clause  "  also  I  lend  to  my  daughter  Peggy  Starke, 
four  negroes,  namely,  one  negro  boy  named  Brister,  one  negro  girl  named 
Betty,  one  negro  woman  named  Abby,  and  one  negro  boy  named  Isaac  : 
I  also  lend  my  daughter  Ann  Harrison,  four  negroes,  namely,  one  negro 
boy  named  Niger,  one  negro  girl  named  Flora,  one  negro  girl  named 
Patty,  one  negro  boy  named  George,  during  their  natural  lives,  and  then 
to  the  heirs  of  their  hodies.'"  He  appointed  his  son  Josiah,  and  his 
nephew  Zadock  Perry,  e.Kecutors  of  his  last  will  and  testament,  "in  trust 
for  the  intents  and  purposes"  therein  "  contained. " 

Philemon  Starke  survived  James  Perry  some  time,  and  died  intestate, 
leaving  his  widow  Margaret,  and  two  children,  Baldy  H.  Starke,  and 
Jane  Caroline,  now  the  wife*  of  Elijah  Hinson,  him  surviving.  The  p^^og 
negroes  mentioned  in  the  will  of  James  Perry,  as  bequeathed  to  his 
daughter  Peggy  (the  said  Margaret)  were  in  possession  of_  the  said 
Philemon  at  his  death,  and  afterwards  remained  for  some  time  in  the 
possession  of  his  widow.  On  the  16th  of  September  1823,  the  life  estate 
of  the  said  Margaret,  in  the  said  slaves  (as  it  was  then  supposed  to  be) 
under  the  will '  of  James  Perry,  deceased,  was  seized  in  execution  at 
the  suit  of  Austin  P.  Peay  v.  Margaret  Starke,  for  a  debt  contracted 
by  her,  as  it  is  said,  in  satisfaction  of  a  debt  of  her  (deceased)  husband  ; 
and  on  the  6th  of  October  in  the  same  3^ear  was  sold  to  the  iiliiintilf,  Col. 
Peay,  for  $500.  He  kept  the  negroes  in  his  possession  for  a  little  more  than 
one  vear  after  the  sale,  and  on  the  26th  day  of  November  1824,  sold  to 
Baldy   H.   Starke  the  supposed  life  estate  of  his  mother  m  them,  for 


30  SOUTH   CAROLINA   EQUITY   REPORTS.  [*36 

$800,  and  delivered  the  said  negroes  to  him.  On  the  29th  of  Kovember 
1824,  Baldy  H.  Starke  executed  a  bill  of  sale  of  James  B.  Pickett  in 
consideration  of  $1289,  ($800  of  which  it  was  believed  is  advanced  by 
Pickett  to  enable  the  said  Baldy  to  purchase  the  negroes  from  Peay)  con- 
veying to  him  the  negroes  Abby,  Isaac,  Betty,  Brister,  Feriba,  Jacob, 
Mahala,  Charlotte,  Mat,  Letha,  and  Amanda ;  the  bill  of  sale  describes 
them  as  a  parcel  of  negroes  "  willed  to  my  mother  and  the  heirs  of  her 
body,"  by  her  father  ;  it  warrants  the  title  to  them  as  far  as  the  title  of 
the  said  Baldy  H.  Starke  extends.  On  the  same  day,  the  said  Baldy  H. 
and  James  B.  entered  into  a  written  contract,  whereby  the  said  Baldy  H. 
agreed  to  hire  from  the  said  James  B.  for  the  term  of  five  years,  the 
negroes  Abby,  Isaac,  Feriba,  Mahala,  Mat,  Letha,  and  Amanda,  at  the 
annual  hire  of  one  dollar  ;  and  the  said  James  B.  agreed  with  the  said 
Baldy  H.,  that  if  he  would,  within  five  years,  pay  him  $1289,  with  in- 
terest on  $1000  from  the  22d  of  November  1824,  that  he  would  make  "him 
titles  of  the  above  named  Brister,  Betty,  Jacob  and  Charlotte."  Baldy 
H.  Starke  died  intestate,  in  January  or  February  1829,  never  having 
made  any  payment  to  the  said  James  B.  Pickett,  and  the  complainant 
John  J.  Myers  administered  on  his  estate.  In  January  1829,  the  com- 
5j,qK-j  plainant,  Hinson,  intermarried  with  Jane  Caroline,  *and  subse- 
■J  quently  administered  on  the  estate  of  Philemon  Starke  deceased. 
James  B.  Pickett,  had  possession  of  Brister,  Betty,  Jacob  and  Char- 
lotte, from  the  execution  of  the  bill  of  sale  ;  and  before  the  expiration  of 
the  year  1829,  acquired  possession  of  the  rest  of  the  negroes,  except 
Amanda,  who  died  in  the  possession  of  Baldy  H.  Starke,  deceased  As  he 
alleges,  he  sold  them  just  before  the  bills  were  filed,  to  James  A. 
Knighton,  who  carried  them  out  of  the  State  But  the  Chancellor  has, 
from  the  facts  in  evidence  before  him,  come  to  the  conclusion  that  the 
sale  was  a  mere  pretence,  and  that  in  fact  the  said  James  B.  Pickett 
sent  the  said  negroes  to  the  western  country,  by  the  said  James  A. 
Knighton,  to  avoid  the  claim  of  the  complainants.  On  the  2'7th  of  January 
1830,  Mrs.  Margaret  Starke  conveyed  to  the  complainant  Mrs.  Hinson, 
all  the  interest  which  she  might  have  in  the  said  slaves,  in  the  event  of  its 
being  decided  that  by  her  father's  will  they  vested  in  her  absolutely  as  the 
first  taker. 

The  following  questions  require  our  consideration  and  judgment  : 

1.  What  estate  vested  in  Margaret  Starke,  in  the  said  negroes,  under 
the  will  of  James  Perry,  deceased  ? 

2.  If  an  aljsolute  one,  then,  can  the  complainant,  Hinson,  as  adminis- 
trator of  Philemon  Starke,  deceased,  maintain  his  bill  in  the  Court  of 
Equity  ? 

3.  If  the  title  of  the  said  slaves  is  in  the  administrator  of  Philemon 
Starke,  deceased,  what  right  has  the  defendant,  James  B.  Pickett,  under 
the  bill  of  sale  to  him,  executed  l3y  Baldy  H.  Starke,  deceased  ? 

1.  I  have  struggled  to  give  effect  to  what  I  believe  to  be  the  clear  in- 
tention of  the  testator,  that  Mrs.  Starke  should  take  an  estate  for  life  ; 
and  that,  at  her  death,  her  children  should,  as  purchasers,  take  the 
remainder.  But  the  technical  rule  is  too  strong  and  too  well  settled,  that 
the  words,  "heirs  of  the  body,"  must  be  considered  words  of  limitation, 
and  not  words  of  purchase  ;  and  that  consequently,  the  estate  vests  in 
the  first  taker.     Notwithstanding,  I  am  not  well  satisfied  with  either  the 


*37]  COLUMBIA,    JANUARY,    1833.  31 

justice  or  the  reason  *of  the  rule,  yet  I  must  be  content  to  say  "  ita  r^oo 
lex  scrijita,"  and  console  myself  by  what  is  said  by  one  of  the  great  L 
masters  of  the  science  of  the  Common  Law,  "that  at  some  other  time,  in 
some  other  place,  and  on  some  other  occasion,  the  wisdom  of  the  rule 
may  appear." 

The  only  three  circumstances  in  this  case,  which  are  supposed  to  vary  it 
from  the  great  body  of  cases,  in  which  a  bequest  of  a  personal  chattel  to 
one  and  the  heirs  of  her  body  vests  an  absolute  estate  in  the  first  taker, 
are — 1st,  that  the  word  "lencV^  is  used,  instead  of  the  word  "give:^^  2d, 
that  the  estate  to  Margaret  Starke  is  expressly  for  life  :  3d,  that  the 
word  'then''  "to  the  heirs  of  their  bodies,"  ties  up  the  limitation  to  the 
time  of  her  death;  and  that  the  words  ''heirs  of  her  boclij,^^  are  merely 
descriptive  of  a  class  of  persons,  (her  childreyi)  who  must,  then  be  in 
esse,  and  take  the  estate  as  purchasers,  and  not  by  descent  from  her  (if 
such  a  term  as  descent  can  be  properly  applied  to  personalty.) 

The  term  lend,  when  used  in  a  bequest,  is  generally  equivalent  to  give. 
In  some  special  cases,  it  has  its  appropriate  meaning:  as  in  the  case  of 
Baker  v.  Baker  &  Red,  decided  by  this  Court,  in  December,  1831.  But 
in  such  cases  there  is  something  which  shows  that  the  testator  did  not 
intend  the  legal  estate  to  pass  to  the  legatee.  In  the  will  under  consid- 
eration, the  testator  has  not  manifested  any  such  intention ;  he  uses  the 
word  to  pass  from  him  his  entire  property  in  the  chattel ;  and  it  is  worthy 
of  remark,  that  he  uses  the  word  not  only  in  relation  to  the  life  estate, 
which  he  had  created  as  he  supposed,  for  his  daughter,  but  also  to  the 
absolute  estate  in  remainder,  which  he  also  supposed  he  had  created,  in 
favor  of  her  children.  The  testator  parts  with  the  entire  dominion  over 
the  property,  and  it  is  absurd  to  say  that  an  estate  which  can  never  revert, 
can  be  a  loan,  which  implies  that  the  use  of  the  thing  is  parted  with  for 
a  limited  time,  or  for  a  specified  purpose,  and  the  right  of  property 
remains  in  the  lender.  It  is  therefore  clear  that  the  word  "  lend,^'  in  this 
will,  must  be  considered  as  synonymous  with  "  give.'^ 

The  bequest  to  Margaret  Starke  is,  it  is  true,  expressly  *for  life;  r^oa 
but  the  limitation  over  to  the  heirs  of  her  body,  showing  that  the  •- 
testator  has  parted  with  the  entire  property  to  her  and  her  descendants, 
enlarges  the  life  estate  into  an  absolute  one,  unless  the  remainder  intended 
to  be  created  can  take  effect.  The  circumstance  of  the  bequest  being  for 
life,  cannot,  therefore,  alter  the  case.  In  all  the  cases  of  executory 
devises,  to  one  and  the  heirs  of  her  body,  the  intention  is  obvious  enough, 
that  the  first  taker  should  take  an  estate  for  life  only.  But  a  technical 
rule  "nemo  est  hceres  vivenfis,^^  intervenes  and  defeats  tlie  intention.  In 
real  estate,  such  words  would  constitute  here,  a  fee  conditional  ;  in  Eng- 
land, a  fee  tail.  In  personalty,  the  words  "  heirs  of  the  body,']  can  have 
no  legal  and  technical  meaning,  so  as  to  affect  the  estate  :  for  in  person- 
alty, there  is  no  descent  cast  upon  the  death  of  the  first  taker.  The 
remainder  cannot  take  effect  2^er  formam  doni,  because  the  subject  mat- 
ter is  not  inheritable  :  and  it  hence  follows,  that  the  words  "heirs  of  the 
body  "in  personalty,  can  have  no  other  effect  than  to  enlarge  the  estate  of 
the  legatee  to  an  absolute  one.  This  reasoning,  I  acknowledge,  is  tech- 
nical, but  it  is  in  support  of  an  ar))itrary  rule  of  construction,  which  is 
itself,  technical :  and  the  reasons  in  support  of  it  must  be,  necessarily,  of 
the  same  character. 


32  SOUTH   CAROLINA    EQUITY   REPORTS.  [*39 

The  word  "then"  cannot  have  the  effect  to  tie  up  the  limitation,  so  as 
to  let  in  the  children  of  Mrs.  Starke,  as  purchasers.  For  the  words  "the 
heirs  of  her  body,"  still  purport  an  indefinite  succession  of  the  line  of  the 
first  taker-  and  before  there  could  be  a  reversion  to  the  testator,  there 
must  be  an  entire  failure  of  descendants,  according  to  the  words  employed 
by  the  testator.  But,  without  pursuing  this  abstract  question  further,  it 
will  be  only  necessary  to  refer  to  the  cases  of  Guerry  v.  Yernon,  1  N.  & 
M'C.  69,  and  Henry  &  Wife  v.  Felder,  2  M'C.  C.  R.  323,  in  which  all 
the  questions  involved  in  this  part  of  the  case,  are  considered  and  decided 
in  conformity  to  the  views  I  have  already  stated. 

Another  view  was  presented  by  the  counsel,  for  Mr.  and  Mrs.  Hinson, 
why  the  remainder  ought  to  be  supported  ;  it  is  that  the  testator  constitu- 
ted his  executors  trustees  to  preserve  it.  But  I  think  there  is  nothing  in 
.  ,  -,  the  will,  to  sustain*  this  position.  It  is  true  the  testator  consti- 
-J  tutes  his  executors  trustees,  for  the  intents  and  purposes  contained 
in  his  will :  but  this  was  nothing  more  than  the  trust  which  resulted  from 
their  appointment  as  executors,  and  their  acceptance  of  it.  If  the  testa- 
tor had  used  any  words  leaving  the  property  under  the  control  of  his 
executors,  during  the  life  of  his  daughter,  so  as  to  prevent  any  legal 
estate  from  vesting  in  her  l)y  the  assent  of  the  executors  to  her  legacy  ; 
or  if  he  had  bequeathed  the  property  to  them,  in  trust  for  the  use  of  his 
daughter  during  life,  and  after  her  death,  for  the  use  of  the  heirs  of  her 
body,  the  argument  would  have  been  conclusive.  This,  however,  has  not 
been  done,  and  we  cannot  give  any  effect  to  the  words  employed  beyond 
the  general  trust,  which  the  law  imposes  on  every  executor,  to  pay  the 
debts  and  pecuniary  legacies,  and  to  deliver  to  the  specific  legatees  the 
property  specifically  devised.  Such  a  trust  was  ended,  when  the  execu- 
tors assented  to  the  legacy  to  Mrs.  Starke  ;  and  can  have  no  effect  in  sup- 
porting a  limitation  over  by  way  of  executory  devise.  I  am  therefore 
reluctantly  brought  to  the  conclusion,  that  Mrs.  Starke  took  an  absolute 
estate  as  first  taker  under  her  father's  will,  and  that  the  marital  rights  of 
her  husband  attached  on  the  property  and  vested  it  in  him,  and  that  the 
right  of  property  in  the  negroes  now  in  dispute  is  in  his  administrator, 
the  complainant  Elijah  Hinson.  I  say  I  have  come  to  this  conclusion 
reluctantly,  because  I  believe  it  is  against  the  testator's  intention,  and  it 
may  seriously  prejudice  the  defendant.  But  if  so,  it  is  an  injury  of  his 
own  seeking.  For  had  he  not  raised  the  question,  all  the  other  parties 
would  have  treated  the  property  as  for  life,  to  Mrs.  Starke,  and  after  her 
death  to  her  children  in  remainder,  under  the  will  of  James  Perry, 
deceased. 

2.  This  brings  me  to  the  consideration  of  the  second  question,  can  the 
complainant  Hinson,  as  administrator  of  Philemon  Starke,  deceased,  main- 
tain his  bill  in  the  Court  of  Equity  ?  I  think  he  can.  The  defendant 
acquired  possession  under  Baldy  H.  Starke,  who  bought  no  more  than  a 
life  estate  supposed  to  be  in  Mrs.  Starke.  The  defendant  knew  the  situ- 
*4|-|  ation  of  the  title,  at  the  time  he  accepted  the  *bill  of  sale  from 
Baldy  H.  Starke,  and  only  intended  and  expected  to  acquire  by  it 
an  estate  in  the  whole  of  the  slaves,  for  the  life  of  Mrs.  Starke,  and  a 
moiety  in  remainder,  in  the  right  of  Baldy  11.  Starke,  as  a  co-tenant  in 
remainder  with  Mrs.  Hinson.  If  Baldy  H.  Starke  had  been  in  posses- 
sion under  his  purchase  from   Col.  Peay,  the  complainant   Hinson,  as 


*41]  COLUMBIA,    JANUARY,    1833.  33 

administrator,  would  have  been  entitled  to  have  proceeded  against  him  in 
Equity,  on  two  grounds  :  first,  that  he  was  a  distributee  in  possession  • 
and  to  prevent  circuity  of  action,  the  Court  of  Equity  would  have  taken 
cognizance  of  the  case,  and  if  there  had  been  no  debts,  or  if  any,  after 
providing  for  their  payment,  would  have  decreed  distribution  :  secondly, 
that  he  might  have  been  permitted  to  set  up,  and  claim  payment  of  the 
debt  of  his  father^  for  which  the  judgment  of  A.  F.  Peay  v.  Margaret 
Starke  was  recovered,  and  to  pay  which  the  slaves  had  been  sold  for  the 
life  of  the  said  Margaret.     The  defendant  being  in  possession,  under 
Baldy  H.  Starke,  is  prima  facie,  to  be  regarded  as  the  owner  of  all  his 
interest;  and  if  that  be  true,  there  would  be  no  doubt  that  the  Court 
would  retain  the  bill  against  him,  for  the  same  reasons  which  it  would 
against  his  grantor  Baldy  H. ;  but  it  will  turn  out  in  the  sequel,  that  the 
defendant  is  not  the  owner  of  the  distributive  share  of  the  said  Baldy  H. 
in  the  said  shares.     Still  this  cannot  oust  the  Court  of  jurisdiction  ;  for 
he  is  in  possession,  claiming  to  hold  all  the  rights  of  Baldy  H.  Starke,  and 
hence  he  was  a  necessary  party  to   a  recovery  and  distribution   of  the 
property.     But  the  defendant  is  not  only  in  possession   under  Baldy  H. 
Starke,  but  he  also  stands  in  the  relation  of  mortgagee  to  him.     For  I 
have  no  doubt  that  the  Ijill  of  sale,  and  the  agreement,  allowing  to  Baldy 
H.   Starke   the   right  of  redemption,  is,  in   Equity,  a   mortgage.     As 
against  Myers,  administrator  of  Starke,  he  could  not  dispute  the  title  of 
Baldy  H.  Starke  as  tenant  for  the  life  of  Mrs.  Starke,  and  as  co-tenant 
in  remainder  with  Mrs.  Hinson.     For  he  entered  under  that  title.     As 
long  as  the  contest  was  between  them,  he  would  have  been  estopped  to 
deny  the  title  of  the  mortgagor.     It  is  the  intervention  of  the  paramount 
title  *of  Philemon  Starke,  deceased,  which  Hinson  as  his  admin-  |-._j.  .^ 
istrator  has  been  forced  to  set  up,  by  the  defendant's  defence,  which  ^ 
could   alone    prevent   Myers   from    obtaining,   as   administrator  of   the 
mortgagor,  a  decree  allowing  him  to  redeem.     The  assertion  of  this  par- 
amount title  enables  the  mortgagee  to  say  legally  to  the  administrator  of 
Starke ;   "I  can  neither  give  up  possession  to  you,  nor  permit  you  to 
redeem,  for  the  property  is  claimed  from  me,  by  another,  claiming  in  a 
different  right."     In  this  point  of  view,  the  defendant  becomes  as  it  were 
the  holder  of  a  fund,  or  property,  to  which  two  claims  are  presented  ;  in 
such  a  case  he  might  by  a  bill  compel  them  to  interplead  and  settle  their 
rights,  so  as  to  enable  him  to  pay  or  deliver  it  to  the  legal  owner.     The 
same  reason  which  would  authorize  the  Court  to  sustain  his  bill,  to  pre- 
vent him  from  being  harassed  by  two  suits  at  law,  for  the  same  property, 
will,  when  applied  to  the  complainants,  authorize  the  Court  to  interfere  at 
the  instance  of  the  paramount  legal  right.     It  will  save  the  litigation  of 
a  suit  at  law,  between  the  complainant  Hinson  and  the  defendant,  and 
another  suit  in  Equity,  between  the  two  complainants  Hinson  and  Myers. 
But  the  defendant  cannot  be  permitted  to  turn  the  party  out  of  the  Court 
of  Equity,  who  has  a  clear  right  to  come  into  it,  to  redeem,  by  setting  up 
the  paramount  title  in  the  administrator  of  Philemon  Starke,  deceased, 
without  submitting  to  a  decree  in  its  favor. 

Independently,  however,  of  this  view,  the  complainant  is  entitled  to 

relief  in  the  Court  of  Equity.     The  defendant  is  in  possession,  and  out 

of  Baldy  H.  Starke's  share  of  the  property,  is  entitled  to  be  paid  the 

debt  which  he  owes  him,  and  to  secure  the  payment  of  which  he  conveyed 

YoL.  1—3. 


34  SOUTH   CAROLINA   EQUITY   REPORTS.  [*'i2 

to  him  the  said  slaves,  if  it  should  not  turn  out  that  there  are  other  debts 
of  a  higher  rank,  sufficient  to  consume  the  whole  of  it.  This  fact, 
although  no  ground  to  prevent  the  Court  of  Law  from  entertaining  juris- 
diction of  an  action  brought  to  recover  the  said  slaves,  is  yet  such  an 
equity  between  the  parties  as  authorizes  the  Court  of  Equity  to  retain 
the  bill,  and  while  it  decrees  the  property  to  be  delivered  up  to  the  com- 
*/tQi  plainant  Hinson,  at  the  same  time  secures  the  rights  *of  the  defend- 
-J  ant,  by  making  provision  as  far  as  practicable,  for  the  payment  of 
his  debt.  The  defendant,  too,  it  must  be  recollected,  furnished  the 
money  which  enabled  Baldy  H.  Starke  to  purchase  the  negroes  from 
Peay.  If  the  fact  be,  as  it  is  alleged,  that  Peay's  debt  against  Marga- 
ret Starke  was  really  contracted  in  satisfaction  of  a  debt  of  Philemon 
Starke,  deceased,  then  I  think  that  the  debt  ought  now  to  be  set  up 
against  his  estate  :  and  as  it  has  been  satisfied  with  the  money  of  the 
defendant,  I  think  he  may  be  subrogated  to  Peay's  rights  in  this  respect, 
in  order  to  aid  in  the  payment  of  Baldy  H.  Starke's  debt  to  him.  This 
circumstance  in  itself  constitutes  a  ground  of  equity  jurisdiction,  and  it 
is  perfectly  immaterial  that  it  is  a  ground  for  the  defendant  to  claim  the 
aid  of  equity  ;  for  if  the  Court  sees  that  after  sending  the  complainant 
to  law,  the  defendant  will  bring  him  back  into  the  Court  of  Equity,  to 
set  up  his  equity,  the  Court  will,  without  this  circuity,  retain  the  bill,  and 
decree  at  once  on  all  the  questions  which  can  be  made. 

If  the  complainant,  Myers,  administrator  of  Baldy  H.  Starke,  deceased, 
bad  been  a  party  to  the  bill  of  Hinson  as  administrator,  it  could  not  have 
been  denied  that  the  Court  would  entertain  jurisdiction  both  against  him 
and  Pickett. 

For,  as  between  Myers,  as  administrator,  and  Pickett,  as  mortgagor 
and  mortgagee,  the  jurisdiction  is  unquestionble  ;  and  it  would  have 
been  equally  so,  between  Hinson  administrator,  and  them,  when  he 
alleged,  as  the  fact  is,  that  the  property  mortgaged,  is  the  property  of  his 
intestate,  and  that  out  of  it,  as  such,  Pickett  had  no  right  to  be  paid,  as 
mortgagee,  the  debt  owing  to  him,  and  secured  by  the  mortgage  :  and 
for  the  same  reason,  that  the  mortgagor  could  have  no  right  to  redeem. 
The  effect  of  the  two  separate  bills  being  tried  together,  and  decided 
upon  by  one  decree,  is  precisely  the  same  as  if  all  the  matters  contained 
in  both  had  been  stated  in  one,  by  both  of  the  complainants.  All  parties 
in  interest  are  before  the  Court,  and  will  be  bound  by  whatever  decree 
may  be  pronounced :  the  cases,  therefore,  may  be  consolidated,  and  any 
necessity  for  the  formal  addition  of  Myers,  administrator  of  Starke, 
*441  *^^  ^  complainant  in,  or  defendant  to  the  bill  of  Hinson,  will  be 
-I  thus  superseded. 

I  am  disposed,  however,  not  to  rest  the  jurisdiction  of  the  Court  on 
these  views  alone  :  I  will  add  another,  which,  to  my  mind,  is  perfectly 
satisfactory.  When  Hinson  and  wife  filed  their  bill,  they  had  the  right 
to  consider  Pickett  as  in  possession  of  an  estate  in  the  said  slaves  for  the 
life  of  their  mother,  under  the  bill  of  sale  of  Baldy  H.  Starke  ;  and  from 
a  tenant  per  aider  vie,  who  had  sold,  removed,  or  attempted  to  remove 
the  property  beyond  the  jurisdiction  of  this  State,  the  tenants  in 
remainder  had  the  right  in  Equity,  to  demand  security  for  the  forthcoming 
of  the  property,  on  the  falling  in  of  the  life  estate — (Swann  v.  Ligon  & 
Budd,    decided   at   Columbia,    May   Term,    1828.)     Baldy  H.    Starke 


^44] 


COLUMBIA,    JANUARY,    1833.  35 


bought  the  slaves  from  Peay,  for  and  during  the  life  of  his  mother  •  he 
conveyed  this  right,  and  possibly  his  supposed  interest  in  remainder,  by 
his  bill  of  sale  to  Pickett.  The  complainants  were  willing  to  concede  to 
Pickett  the  life  estate  of  their  mother,  and  from  the  manner  in  which  he 
acquired  possession,  they  had  the  right  to  suppose  he  would  not  raise  a 
contest  which  would  defeat  his  own  rights.  If  he  had  conceded,  as  the 
complainants  had  done,  that  Mrs.  Starke  had  an  estate  for  life  in  the 
slaves,  and  that  it  was  conveyed  to  him,  there  could  have  been  no  doubt 
of  the  jurisdiction  of  the  Court,  to  have  ordered  him  to  give  security  for 
the  forthcoming  of  the  property,  if  they  had  shown,  as  it  appears  they 
did,  that  he  had  endangered  their  rights  in  remainder.  To  defeat  this 
plain  and  obvious  equity  of  the  complainants,  he  has  set  up  the  existence 
of  a  pai'amount  title  in  Philemon  Starke,  deceased  ;  and  to  meet  this 
possible  state  of  things,  the  complainant  (Hinson)  administers  on  his 
estate,  and  superadds  the  whole  legal  title  to  his  defective  equitable  title 
to  a  moiety,  and  amends  his  bill,  and  prays  a  decree  under  it.  Does  this 
oust  the  jurisdiction  of  the  Court  of  Equity  ?  I  think  it  does  not.  For 
the  defendant  sets  up  the  paramount  title  to  defeat  the  complainant's 
right  to  a  decree,  in  a  case  confessedly  within  the  jurisdiction  of  the 
Court  of  Equity,  if  their  allegations  are  true. 

On  the  part  of  the  complainants,  it  is  said  this  may  be  *true,  and  r;j, , - 
if  so,  the  legal  title  is  also  with  us,  one  of  us  being  the  adminis-  L 
trator,  and  we  therefore  claim  a  decree  in  favor  of  it.  The  legal  title  is 
obliged  to  be  decided  on,  its  validity  established,  before  the  complainant's 
equity  can  be  denied.  When  this  is  done,  it  would  be  nugatory  to  send 
the  parties  to  law  to  try  a  question  which  the  Court  of  Equity  has  already 
decided,  as  it  must  be  there  decided.  When  a  legal  title  is  raised  by  the 
defendant  in  his  defence,  or  comes  in  question  collaterally,  the  Court  of 
Equity  must  decide  on  it.  In  this  case  it  is  raised  by  the  defendant's 
defence,  and  is  necessary  to  him  to  prevent  their  Equity  from  prevailing  ; 
but  it  is  found  on  examination,  that  this  legal  title  set  up  by  the  defend- 
ant, is  in  one  of  the  complainants,  and  that  therefore  he  is  entitled  to  the 
benefit  of  it,  and  as  it  is  brought  forward  by  the  defendant,  the  Court 
must  decree  upon  it  in  favor  of  the  complainant  to  whom  it  belongs. 

3.  I  am  satisfied  that  the  defence,  carved  out  by  the  defendant  for 
himself,  is  the  destruction  of  his  title,  under  Baldy  11.  Starke,  deceased. 
The  right  of  property  being  in  the  administrator  of  the  intestate  Phile- 
mon Starke,  when  he  conveyed  to  the  defendant,  he  conveyed  to  him  no 
title,  legal  or  equitable.  For  his  bill  of  sale  purports  to  convey  the 
slaves  themselves  ;  this  he  could  not  do,  as  the  property  was  in  another. 
It  cannot  convey  his  distributive  share,  for  no  words  descriptive  of  it,  as 
such,  and  indicating  an  intention  to  convey  it,  are  used.  In  the  slaves, 
when  he  conveyed,  he  had  no  legal  interest  whatever  ;  his  interest  was  a 
mere  equity  that  the  administrator  would  deliver  him  one-third,  after  pay- 
ment of  the  debts.  Until  administration  has  been  made,  his  right  is 
only  inchoate,  for  it  may  be  that  the  debts  may  consume  it  all.  His  ])ill 
of  sale,  not  conveying  his  distributive  share,  his  administrator  is  entitled 
to  take  it,  subject  to  an  account  and  deduction  from  it,  for  the  hire  of 
such  slaves  as  he  had  in  possession.  The  defendant's  right  to  be  refunded 
the  money  which  he  advanced  to  Baldy  H.  Starke,  and  to  secure  the  pay- 
ment of  which  the  slaves  were  conveyed  to  him,  with  the  interest  thereon, 


o6  SOUTH   CAROLINA   EQUITY   REPORTS.  [*45 

is  a  simple  contract  debt  against  Baldy  H.  Starke,  and  must  be  paid 
accordingly,  by  his  administrator,  so  far  as  his  assets  will  extend.  As 
^  .  „-,  ^ancillary,  and  perhaps  on  an  account  had  it  may  turn  out  in  lieu  of 
-'  it,  I  think  the  defendant  Pickett  may  be  subrogated  by  virtue  of 
the  conveyance  to  him  of  the  slaves,  and  the  loan  of  the  money  to  Baldy 
H.  Starke  for  their  purchase  by  him  from  Peay,  to  the  right  of  Baldy  H. 
Starke  and  Peay,  to  have  $800  of  the  debt  in  the  case  of  A.  F.  Peay  v. 
Margaret  Starke,  with  interest  from  the  •24th  of  November,  1824,  set  up 
as  a  debt  against  the  estate  of  Philemon  Starke,  if  it  should  turn  out  on 
investigation  that  the  allegation  is  correct  that  the  judgment  of  Austin 
P.  Peay  v.  Margaret  Starke  was  on  a  contract  entered  into  by  her,  to 
satisfy  a  debt  of  the  said  Philemon. 

It  is  ordered  and  decreed  that  the  Chancellor's  decree  be  modified 
according  to  the  principles  contained  in  this  opinion  ;  that  the  case  of 
Elijah  Hinson  and  wife,  and  Elijah  Hinson  as  administrator  of  Philemon 
Starke,  deceased,  v.  James  B.  Pickett,  and  the  case  of  John  J.  Myers, 
administrator  of  Baldy  H.  Starke,  deceased,  v.  James  B.  Pickett,  be 
consolidated,  and  henceforward  considered  as  one  case,  in  which  Hinson 
and  wife,  Hinson  as  administrator,  and  Myers  as  administrator,  are  to  be 
considered  as  complainants,  on  the  facts  stated  in  both  bills,  and  Pickett, 
the  defendant,  to  have  the  benefit  of  both  his  answers  as  one. 

It  is  also  ordered  and  decreed,  that  the  defendant,  Pickett,  do  forthwith 
deliver  to  the  complainant  Hinson  as  administrator  of  Philemon  Starke, 
deceased,  the  slaves  in  dispute,  or  on  failing  to  do  so  within  two  months 
after  notice  of  this  decree,  that  he  account  to  him  before  the  Com- 
missioner for  the  value  of  them,  and  that  he,  in  either  of  the  alternatives 
pointed  out  in  this  part  of  the  decree,  do  account  with  the  said  Hinson 
as  administrator,  before  the  Commissioner,  for  the  hire  of  the  said  slaves, 
from  the  time  they  respectively  came  into  his  possession,  until  the  day  on 
which  he  shall  deliver  them  up,  or  be  charged  with  their  value  as  the  case 
may  be,  with  interest  on  the  annual  hire. 

It  is  further  ordered  and  decreed,  that  the  Commissioner  do  inquire 
^<4'j-]  ^""d  report,  whether  the  judgment  of  *  Austin  P.  Peay  v.  Margaret 
Starke,  was  on  a  contract  entered  into  by  her,  for  and  in  satisfaction 
of  a  debt  of  Philemon  Starke,  deceased,  and  if  so,  whether  on  the  24th 
of  November,  1824,  it  amounted  to  and  exceeded  $800  ;  and  in  that  case 
to  allow  the  defendant,  James  B.  Pickett,  credit  for  that  sum,  with 
interest  from  that  time,  in  his  accounts  with  the  administrator  of  Phile- 
mon Starke,  deceased  ;  if,  however,  it  did  not  amount  to  so  much,  then 
for  whatever  sum  it  did  amount  to,  with  interest  from  that  time.  If, 
however,  it  was  not  for  the  debt  of  Philemon  Starke,  deceased,  but  was 
the  proper  debt  of  the  said  Margaret,  then  no  credit  can  be  allowed  for 
it  in  the  accounts  with  the  estate  of  Philemon  Starke,  deceased,  but  it 
must  remain  as  a  charge  upon  the  distributive  share  of  the  said  Margaret, 
by  her  voluntarily  conveyed  to  Mrs.  Hinson. 

It  is  also  ordered  and  decreed,  that  the  administrator  of  Baldy  H. 
Starke  do  account  for  the  hire  of  the  said  negroes  during  the  time  they 
were  in  the  possession  of  the  said  Baldy,  with  interest  on  the  annual  hire, 
and  that  the  same  be  deducted  from  the  amount  of  his  distributive  share 
of  the  personal  estate  of  the  said  Philemon  Starke,  deceased,  recovered 
in  this  case. 


*47]  COLUMBIA,    JANUARY,    1833.  37 

It  is  further  ordered  and  decreed,  that  the  Commissioner  do  report  the 
amount  and  rank  of  the  debts  of  Philemon  Starlce,  deceased,  and  also  of 
Baldy  H.  Starke,  deceased,  including  whatever  may  be  due  James  B. 
Pickett  on  account  of  the  money  paid  by  him  to  Baldy  H.  Starke  for  the 
conveyance  of  the  said  slaves,  after  deducting  (if  any  sum  should  be 
reported)  whatever  may  be  allowed  to  him,  as  a  credit  in  the  accounts  of 
Philemon  Starke,  or  as  a  charge  on  Margaret  Starke's  distributive  share, 
on  account  of  Peay's  judgment  against  her. 

It  is  further  ordered  and  decreed,  that  if  the  slaves  are  delivered  to  the 
complainant  Hinson,  administrator,  that  he  do  forthwith  sell  the  same  for 
partition,  on  a  credit  of  one  year,  taking  bonds  and  security  and  mortgages 
from  the  purchasers,  and  that  he  do  return  the  amount  of  sales  to  the 
Commissioner,  as  well  as  to  the  Ordinary  ;  and  that  the  Commissioner 
do  take  the  same  into  account  in  making  up  his  *final  report  of  the  r^c.q 
amount  of  the  estate  of  Philemon  Starke,  deceased,  for  distribution.  L 

It  is  further  ordered  and  decreed,  that  the  personal  estate  of  Philemon 
Starke,  deceased,  after  payment  of  his  debts,  be  distributed  as  follows : 
one-third  as  the  distributive  share  of  Margaret  Starke  (after  deducting 
therefrom  the  amount  of  Peay's  judgment,  if  it  should  not  exceed  $800 
with  interest  from  the  24th  of  November,  1824,  if  the  same  should  be  for 
her  proper  debt,  and  not  for  the  debt  of  Philemon  Starke,  and  paying 
the  same  over  to  James  B.  Pickett,)  be  paid  to  Elijah  Hinson  and  wife, 
under  the  voluntary  conveyance  of  Mrs.  Starke  to  the  said  Mrs.  Hinson  ; 
one  other  third,  the  distributive  share  of  the  complainant,  Jane  Caroline 
Hinson,  be  paid  to  Elijah  Hinson  and  wife  ;  and  the  remaining  third,  the 
distributive  share  of  Baldy  H.  Starke,  deceased,  after  making  the  deduc- 
tion for  hire  hereinbefore  directed,  be  paid  to  his  administrator,  John  J. 
Myers,  that  out  of  it  he  do  first  pay  the  costs  of  the  case,  John  J. 
Myers,  administratoi',  v.  James  B.  Pickett,  up  to  this  time,  and  then  that 
out  of  the  balance  he  do  pay  the  debts  of  Baldy  H.  Str.rke,  deceased,  so 
far  as  his  assets  shall  extend,  in  the  order  and  proportions  which  may  be 
fixed  hereafter  by  the  decree  of  the  Court  of  Equity  in  this  case. 

The  defendant  must  pay  the  costs  of  the  case  of  Hinson  and  wife,  and 
Hinson,  administrator  :  any  further  costs  which  may  hereafter  accrue  in 
this  case,  will  be  subject  to  the  order  of  the  Circuit  Court,  to  be  hereafter 
made  on  the  coming  in  of  the  Commissioner's  report. 

Johnson  and  Harper,  Js.,  concurred. 

Peareson  and  NoU,  for  the  complainants. 

Clarke  and  MWoivell,  for  the  defendants. 


*JOHN    C.    VOLENTINE    V.    SaMUEL  0.    JOHNSON    and    ZaCHARIAII    j-^^^g 

Johnson. 

Where  land  is  held  jointly,  each  co-tenant  has  a  right  to  the  enjoyment,  to  the 
extent  of  bis  interest;  and  if  one  tenant  voluntarily  abaudou  his  possession,  the 
other  remaining,  will  not  be  accountable  for  the  rent  of  the  entire  tract,  but  only 
of  such  portion  as  has  been  rendered  productive  by  the  labor  of  the  tenant  who 
abandoned  it.[*50] 


38  SOUTH    CAROLINA    EQUITY   REPORTS.  [*49 

Where  one  joint  tenant  is  in  possession  of  land,  and  bis  co-tenant  is  indebted  to  bim 
on  account  of  tlie  purcbase  money,  the  rents  and  profits  must  be  applied  to  the 
payment  of  that  debt ;  first  to  the  interest  which  had  accumulated  up  to  the  time 
the  rent  became  due,  and  then  to  the  accruing  interest,  before  any  part  is  applied 
to  the  principal.  [*50] 

Johnson,  J.  In  1805,  the  complainant,  and  defendant,  Samuel  0. 
Johnson,  purchased  jointly,  a  tract  of  land  represented  to  contain  about 
206  acres,  at  the  price  of  $600.  Of  this  sum,  S.  O.  Johnson  paid  an 
amount  which  left  the  complainant  indebted  to  hira  on  account  of  the 
purchase,  in  the  sum  of  $119  30.  Both,  immediately  after  the  purchase, 
settled  upon  the  land,  and  without  any  definite  partition,  each  cleared  and 
cultivated  separate  fields  and  plantations  of  about  equal  quantities,  both 
much  short  of  one  half  of  the  whole  tract,  until  1816,  when  the  com- 
plainant voluntarily  abandoned  his  possession.  Samuel  0.  Johnson  con- 
tinued in  the  use  and  occupation  of  what  he  had  retained,  and  from  year 
to  year  cultivated  also  parts  of  that  portion  which  had  been  possessed  and 
abandoned  by  the  comi)lainant,  until  1825,  when  his  undivided  moiety 
was  sold  under  fi.  fa.  at  sheriff's  sale,  and  purchased  by  the  defendant 
Zachariah  Johnson.  The  bill  is  for  a  partition  of  the  land,  between  the 
complainant  and  Zachariah  Johnson,  and  for  an  account  of  rents  and 
profits  against  both  the  defendants,  for  the  time  they  have  respectively 
had  the  possession.  The  decree  of  the  Circuit  Court  is  predicated  upon 
an  account  stated  by  the  Commissioner,  in  which  the  defendants  are 
charged  with  one  half  the  annual  rents  of  the  whole  plantation,  including 
the  lands  cleared  and  cultivated  by  the  defendant,  Samuel  0.  Johnson,  as 
well  as  that  by  tl»e  complainant,  notwithstanding  neither  of  the  defen- 
dants cultivated  the  whole  of  the  plantation  abandoned  by  the  com- 
plainant ;  and  error  in  this  respect,  is  one  of  the  grounds  of  the  present 
appeal. 

I  cannot  perceive  that  there  is  any  room  to  doubt  about  this  question 
— natural  justice  would  suggest  that  one  co-tenant  has  a  right  to  the  en- 
joyment of  the  estate,  to  the  extent  of  his  interest,  and  I  know  of  no 
positive  rule  which  deprives  him  of  it.  It  deprives  the  other  of  no  right 
and  does  him  no  wrong.  He  has  the  same  right,  and  may  profit  by  it,  if 
he  will.  He  therefore  has  no  cause  of  complaint.  These  parties  acted 
*50i  "PO"  this  principle,  from  1805,  to  1806,  each  appropriated  *to  him- 
self whatwas  necessary  to  his  use,  of  the  joint  property,  neither  to 
the  whole  extent  of  his  interest,  for  the  witnesses  say  that  neither  culti- 
vated more  than  twenty-five  or  thirty  acres.  The  complainant  could  not, 
according  to  the  principles,  vary  the  rights  of  the  defendant,  by  a  volun- 
tary abandonment  of  the  use  of  his  possession  ;  their  rights  were  precisely 
the  same  as  if  he  had  continued  it.  When,  however,  they  used  that 
which  the  comj)lainant  had,  by  common  consent,  appropriated  to  his  own 
use,  and  rendered  productive  by  his  own  labor,  they  derived  a  benefit 
which  was  unequal,  and  ought  to  account  for  it.  We  think,  therefore, 
very  clearly,  that  the  defendants  are  bound  severally,  to  account  for  the 
rents  and  profits  of  so  much  land  as  they  respectively  cultivated,  from 
year  to  year,  which  was  improved  and  possessed  by  the  complainant, 
before  he  abandoned  the  possession,  but  not  for  any  part  or  portion  of 
that  improved  by  them,  before  or  since  that  time. 

We  think,  too,  that  there  is  error  in  the  manner  of  setting  off  the  ac- 


*50]  COLUMBIA,    JANUARY,    1833.  39 

counts  of  rents  and  profits,  against  the  sum  due  by  the  complainant  to 
the  defendant,  Samuel  O.  Johnson,  on  account  of  the  purchase.  That 
sura  was  a  debt  due  to  him,  and  his  liability  for  rents  and  profits  is  in  the 
nature  of  payments,  and  must  be  first  applied  to  the  payment  of  the  ac- 
cruing interest.  Samuel  0.  Johnson  is,  of  course,  entitled  to  interest  on 
the  sum  advanced  by  him  from  the  time  of  payment ;  and  the  rents  and 
profits,  which  first  accrued,  must  be  applied  to  the  payment  of  the  interest 
which  had  accumulated  up  to  the  time  the  rent  became  due,  and  so  from 
year  to  year,  until  first,  the  accumulated  interest  is  paid,  and  then  to  the 
accruing  interest,  before  any  part  is  applied  to  the  payment  of  the  prin- 
cipal. 

It  is  therefore  ordered  and  decreed,  that  the  decree  of  the  Circuit 
Court  be  reformed  according  to  the  principles  of  this  decree,  and  that  the 
Commissioner  do  state  an  account  comformably  thereto. 

O'Neall  and  Harper,  Js.,  concurred. 

Williams  and  Glowney,  for  the  appellants. 

Thomson,  contra. 


*Elizabetii  Cabeen  vs.  Caroline  Gordon,  and  others,  heirs-at-law  r^r-t 
of  Mary  Tims,  deceased.  '- 

On  a  bill  to  charge  a  specific  legacy  with  the  payment  of  an  anuual  sum,  all  the 
parties  in  interest  should  be  before  the  Court ;  and  the  Court  may,  at  any  stage 
of  a  case,  direct  a  bill  to  be  amended  so  as  to  make  proper  parties,  and  this  may 
be  done  with  or  without  costs,  according  to  the  discretion  of  the£!ourt.  [*53] 

The  testator,  by  his  will,  bequeathed  certain  negroes  to  his  helpless  daughter,  B., 
and  then  declares  "  I  allow  my  daughter  M.,  to  take  care  of  the  said  B.,  and  at 
her  decease  I  allow  my  said  daughter  M.,  to  have  the  said  negroes,  to  her  and  her 
heirs  and  assigns,  forever:"  Held,  that  this  is  a  bequest  on  condition  that  the 
direction  be  complied  with,  and  that  if  M.  should  not  "  take  care  of  B."  the 
remainder  would  not  vest,  and  that  the  negroes  might  be  sold  for  the  support  of 
B.[*55] 

The  word  "  allow"  in  a  will,  may  be  construed  as  synonymous  with  "  direct"  or 
"  give,"  so  as  to  effectuate  the  intention  of  the  testator  [••■56] 

A  contract,  to  be  sustained  and  specifically  enforced  as  a  bar  to  the  plaintiff's  equity, 
must  be  fair,  just,  reasonable,  mutual,  and  founded  on  a  good  or  valuable  consid- 
eration. [*5G] 

But  fin  agreement  wanting  some  of  these  essential  requisites,  may  avail  the  defen- 
dants so  far  as  to  prevent  the  account  against  them,  from  being  carried  beyond 
the  time  of  filing  the  bill.  [*57] 

On  questions  of  fact,  the  concurrence  of  the  Commissioner  and  Chancellor,  is  gene- 
rally decisive  with  this  Court.  [*58] 

Thomas  Cabeen,  deceased,  by  his  will,  dated,  3d  December,  1801,  inter 
alia,  bequeathed  to  his  daughter,  Mary  Cabeen,  a  negro  woman,  Jane, 
"allowing  [in  the  words  of  the  will]  the  second  child  (of  the  negro  it 
any)  to  my  daughter  Betsy :"  and  by  another  clause,  he  bequeaths  to  his 
"beloved  daughter  Betsy,  a  mulatto  girl,  named  Nan;  and  I  allow  my 
daughter  Mary,  to  take  care  of  my  said  daughter  Betsy,  and  at  her  de- 
cease, I  allow  my  daughter  Mary  to  have  the  said  mulatto  girl  named 
Nan,  with  her  increase,  (if  any)  together  with  negro  Jane's  second  chiid, 


40  SOUTH   CAROLINA   EQUITY   EEPORTS.  [*57 

(if  any)  to  her  and  her  heirs  and  assigns,  forever."  The  negro  woman, 
Jane/had  a  second  child,  as  contemplated  by  the  will,  called  Flora,  who 
has  now  five  children. 

Mary  Cabeen  intermarried  with  Amos  Tims,  and  removed  to  Alabama, 
where  she  died,  leaving  children  (the  present  defendants,  and  their  hus- 
bands), never  having  taken  care  of  the  plaintiff  (the  said  daughter  Betsy), 
nor  having  had  possession  of  these  negroes.  The  plaintiff,  from  infancy, 
has  been  helpless  and  infirm,  unable  to  walk  or  assist  herself  in  any  way, 
and  requires  extraordinary  care  and  attention.  She  is  of  sane  mind,  but 
utterly  unfit  to  manage  or  transact  her  own  affairs.  After  her  father's 
death,  Naa  and  Flora  (the  negroes  bequeathed  to  her),  went  into  her 
possession,  and  she  has  held  them  ever  since.  She  lived  witli,  and  was 
taken  care  of  by  her  mother,  until  the  death  of  the  latter,  since  which  she  has 
been  a  dependent  on  her  relations — the  labor  or  hire  of  the  negroes  being 
wholly  inadequate  to  her  support.  In  the  year  1828,  and  after  the  death 
of  his  wife,  Amos  Tims  entered  into  a  written  obligation  to  pay  the 
plaintiff  $30  per  annum,  for  five  years,  for  Flora  and  her  children,  who 
were  to  be  delivered  up  to  the  defendants.  The  plaintiff  received  some 
money  under  this  arrangement ;  but  after  it  had  existed  for  a  year  and 
upwards,  she  gave  Tims  notice  that  she  would  not  deliver  Flora  and  her 
children,  and  that  his  obligation  would  be  delivered  to  him,  or  can- 
celled. 

^Koi       *The  bill  is  filed  to  compel  the  defendants  to  support  and  main- 
-^  tain  the  plaintiff  according  to  the  condition  of  the  bequest ;  or  to 
abandon  their  right  in  remainder,  and  to  subject  the  property  to  her 
maintenance. 

The  defendants,  in  their  answer,  declare  themselves  willing  "to  take 
care  of"  the  plaintiff,  according  to  the  terms  of  the  will,  but  rely  on  the 
agreement  made  with  Amos  Tims,  which  they  set  up  in  bar,  and  pray 
to  be  sustained. 

The  Commissioner,  on  a  reference,  ascertained  and  reported  $1*75  per 
annum,  as  a  proper  allowance  for  the  maintenance  of  the  plaintiff. 

The  case  was  heard  at  Chester,  July  Term,  1832,  before  Chancellor 
De  Saussure,  who  confirmed  the  Commissioner's  report,  and  ordered 
that  the  defendants  should  give  security  for  the  sum  allowed,  or  that  the 
negroes  should  be  subjected  to  the  payment  thereof. 

From  this  decree  the  defendants  appealed,  on  the  following  grounds  : 

l._  That  the  bill  should  have  been  dismissed,  for  the  want  of  proper 
parties ;  Amos  Tims,  the  husband  of  the  legatee  in  remainder,  in  whom 
the  fee  vested,  not  being  a  party. 

2.  That  according  to  a  proper  construction  of  the  will,  the  remainder 
in  fee  vested  absolutely  and  unconditionally  in  Mary  Cabeen,  at  her 
father's  death. 

3.  That,  admitting  the  bequest  was  on  condition  that  the  complainant 
should  be  "  taken  care  of,"  the  Chanceller  should  have  sustained  the 
agreenient  with  Amos  Tims,  as  in  performance  of  that  condition. 

4.  That  the  annual  allowance  reported  by  the  Commissioner,  is  too 
much. 

5.  That  the  defendants  should  not  be  subjected  to  the  costs. 

Eaves,  for  the  appellants,  commented  on  these  grounds  at  large,  and 


*52]  COLUMBIA,   JANUARY,    1833.  41 

cited  and  relied  on  3  Yes.  Ch.  Rep.  204  ;  lb.  102,  13;  1  Eopcr,  208, 
319,  333,  186;  2  Con.  Rep.  91 ;  2  M'C.  Ch.  Rep.  306;  20  Yes.  Rep. 
144-5 ;  1  Madock,  286. 


[*53 


Mills,  contra. 

*0'jSI'eall,  J.  The  objections  to  the  Chancellor's  decree,  which 
have  been  insisted  on  in  the  argument  of  this  case,  may  be  arranged 
under  the  following  heads. 

1st.  The  want  of  parties.  2d.  The  construction  of  the  clauses  of  the 
will  of  Thomas  Cabeen  deceased,  under  which  the  complainant  and  the 
defendants  claim.  3d.  The  effect  of  the  agreement  between  the  com- 
plainant and  Amos  Tims,  by  which  the  latter  agreed  to  pay  her,  annually 
$30  for  five  years.  4th.  The  amount  to  be  paid  to  her  annually.  5th. 
The  costs. 

1.  Whether  the  legacy,  in  remainder,  to  Mary  Tims,  is  to  be  consi- 
dered as  vested,  or  contingent,  it  is  not  such  an  interest  as  would  jure 
mariti,  vest  in  the  husband.  It  was  a  mere  chose  in  action,  incapable 
of  being  reduced,  either  actually  or  constructively  into  possession,  during 
the  lifetime  of  the  tenant  for  life.  As  husband,  Amos  Tims  did  not,  and 
could  not,  therefore,  acquire  the  absolule  estate,  or  right  of  property  in 
remiiinder,  to  which  his  wife  may  be  entitled  ;  his  interest  is  as  one  of  the 
distributees  of  his  deceased  wife.  The  legal  estate  of  Mary  Tims  at  her 
death,  vested  in  her  administrator ;  the  right  to  have  it  distributed  be- 
tween her  husband  and  children,  creates  in  them  an  equity,  which  in  a 
case  like  the  present,  where  an  annual  sum  is  required  to  be  paid  to  pre- 
serve the  remainder,  makes  it  necessary  that  both  the  administrator,  and 
the  husband  and  children  of  Mary  Tims,  should  be  parties.  The  fonuer, 
as  the  representative  of  the  legal  estate,  and  the  latter,  as  the  parties 
really  in  interest  in  Equity. 

This  objection,  for  the  want  of  parties,  ought,  it  is  true,  in  strict  prac- 
tice, to  have  been  taken  by  demurrer  ;  this  course,  if  it  had  been  pursued 
by  the  defendants,  would  have  subjected  the  complainant  to  the  costs, 
both  of  the  demurrer  and  amendment.  A  demurrer  for  the  want  of 
parties,  is  therefore  both  the  more  regular,  and  usually  the  more  pi'udent 
course.  But  there  can  be  no  doubt  that  the  Court,  at  any  stage  of  a  case, 
upon  seeing  that  sufficient  parties  are  not  before  it,  have  the  right  to 
arrest  the  case,  and  direct  the  bill  to  be  amended,  so  as  to  bring  in  all 
the  parties  in  interest.  This  may  be  done,  either  upon  the  payment  of 
costs,  or  *without  costs,  as  the  Court,  in  the  exercise  of  a  sound  p^^^ 
discretion,  may  think  proper.  By  a  sound  discretion,  I  understand 
not  a  mere  capricious  exercise  of  power  or  will,  but  the  exercise  of  a 
right  judgment  in  determining  which  of  the  parties  have  alone  been  in 
default.  If  the  complainant,  then  she  ought  to  pay  costs  ;  but  if,  on  the 
other  hand,  both  the  complainants  and  the  defendants  have  alike  been  in 
default,  or  if  both  alike  have  been  mistaken  in  supposing  that  all  i)arties 
necessary  were  before  the  Court,  then  the  amendment  ought  to  he  with- 
out costs.  In  this  case  it  appears  from  the  answers  of  the  defendants,_  as 
well  as  the  bill  of  the  complainants,  that  they  all  concurred  in  bclicvmg 
that  all  the  parties  interested  in  the  matter  in  dispute,  were  before  the 
Court.     The  objection  is  now  made  for  the  first  time,  as  a  shift  to  which 


42  SOUTH   CAROLINA   EQUITY   REPORTS.  [*53 

ingenious  counsel  sometimes  resort,  to  relieve  their  clients  from  a  decree 
which  operates  hardly  against  their  interests.  Under  these  circumstances, 
the  complainant  must  have  leave  to  amend,  (without  paying  costs)  by 
making  the  administrator  of  Mary  Tims,  deceased,  and  her  husband,  Amos 
Tims,  parties  to  this  suit.  This  preliminary  question  being  disposed  of, 
in  such  a  way  as  to  make  it  necessary  that  the  case  shoulcl  go  back  to 
the  Circuit  Court,  it  would  seem  to  be  unnecessary  to  consider  the  other 
parts  of  the  case  ;  but,  as  it  is  altogether  an  objection  of  strict  practice, 
and  the  parties  to  be  made  cannot  vary  the  case,  and  as  the  other  points 
of  the  case  have  been  fully  developed  and  argued,  and  an  expression  of 
our  opinion  upon  them  may  terminate  the  litigation,  we  have  thought  it 
best  to  consider  and  decide  the  whole  case, 

2.  It  is  necessary  to  consider,  and  give  construction  to  the  two  clauses 
of  the  will  of  Thomas  Cabeen,  under  which  the  parties  claim.  The  2d 
clause  gives  a  negro  woman  Jane,  to  Mary  Cabeen,  (afterwards  Tims) 
and  the  testator  then  qualifies  the  gift  by  saying,  "allowing  the  first 
child  of  the  said  Jane  (if  any)  to  my  daughter  ^^ancy  Hill,  and  the  se- 
cond (if  any)  to  my  daughter  Betsy."  The  5th  clause  is  in  the  following 
words  "  I  give  and  bequeath  to  my  beloved  daughter  Betsy,  one  mulatto 
girl  named  Nan  ;  and  I  allow  my  daughter  Mary  to  take  care  of  the 
said  daughter  Betsy,  and  at  her  decease,  I  allow  my  said  daughter 
*551  ^'^^T  to  have  *the  said  mulatto  girl,  named  Nan,  with  her  increase, 
if  any,  together  with  negro  Jane's  second  child  (if  any),  to  her  and 
her  heirs  and  assigns,  forever." 

The  negro  Jane  had  two  children,  as  contemplated  by  tlie  testator's 
will :  the  second  one,  Flora,  was  put  in  the  possession  of  the  complain- 
ant, and  now  has  five  children.  Mary  Cabeen  married  Amos  Tims,  and 
most  probably,  after  her  marriage,  never  took  care  of  the  complainant. 
It  appears,  however,  to  have  been  tacitly  understood  by  all  parties,  that 
the  services  of  the  slaves  were  sufiicient  to  the  comfortable  nudntenance 
of  the  complainant ;  and  that  no  claim  for  any  care  or  support  was 
made  on  Mary  Tims  or  her  representatives,  until  the  arrangement  was 
entered  into,  between  the  complainant  and  the  father  of  the  defendants, 
Amos  Tims,  for  the  delivery  of  Flora  and  her  children  to  him,  and  the 
payment  by  him  to  her,  of  an  annuity  of  $30.  In  the  bill  filed  by  the 
complamant,  she  only  requires  the  defendants,  then  to  elect  whether  they 
will  abandon  the  remainder  to  their  mother  and  her  heirs,  or  to  support 
her.  Under  these  circumstances,  the  case  will  be  considered  as  if  Mary 
Tims  had  taken  care  of  the  complainant  until  the  arrangement  was  made 
for  the  payment  of  an  annual  sum  for  her  support,  by  Amos  Tims. 

It  will  be  seen  by  referring  to  the  clause  of  the  will,  that  the  bequest 
of  the  slaves  to  the  complainant,  is  in  the  first  place  absolute  ;  its  reduc- 
tion to  a  life  estate  is  made  to  depend  upon  Mary  taking  care  of  her 
during  life  ;  in  such  an  event,  at  her  death  the  said  Mary  is  to  take  the 
slaves  in  remainder.  A  plain  construction  of  the  5th  clause,  according 
to  the  testator's  intention,  would  make  it  assume  the  following  form : 
"  I  give  the  slaves  Nan  and  Flora  to  ray  daughter  Betsy,  but  if  my 
daughter  Mary  shall  take  care  of  the  said  Betsy  during  her  life,  then  at 
her  death  I  give  the  said  slaves  to  the  said  Mary  and  her  heirs  and  assigns 
forever." 

The  word  "  allow,"  used  in  this  clause  twice,  is  evidently  used  in  two 


*55]  COLUMBIA,    JANUARY,    1833.  43 

meanings,  neither  of  which  is  its  appropriate  signification,  lu  that  part 
of  the  clause  in  which  the  testator  spealvs  of  Betsy  being  taken  care  of 
by  Mary,  it  is  used  as  synonymous  with  "  direct :"  in  the  other  *pari,  p^ . 
which  creates  the  remainder  in  favor  of  Mary,  it  is  used  instead  L'*^^ 
of  "  give."  The  clause,  when  proper  words  are  used  to  express  the 
testator's  meaning,  would  read  thus  :  "  I  direct  my  daugliter  Mary  to 
take  care  of  said  daughter  Betsy,  and  at  her  decease  I  give  to  my 
daughter  Mary,"  &c.  Reading  the  clause  in  this  way,  according  to  the 
testator's  intention,  it  is  obvious  that  the  direction  must  be  complied 
with,  or  the  remainder  may  never  vest.  For,  to  the  support  of  the  com- 
plainant, the  whole  property  might  not  be  sufficient,  if  she  was  left  to 
provide  for  herself :  and  it  is  perfectly  plain  that  the  testator  has  left  her 
the  uncontrolled  disposition  of  it,  unle.<s  her  sister  should  take  care  of 
her.  If  she  does,  then  the  property,  not  being  necessary  for  the  support 
of  the  complainant,  will  remain  for  the  legatee  in  remainder.  "  To  take 
care  of"  is  equivalent  to  support  and  maintenance,  as  well  as  personal 
attention. — Indeed  all  are  included  under  the  direction  "to  take  care  of" 
For  one  cannot  be  said  to  be  taken  care  of,  who  is  waited  on  with  great 
care,  but  who  is  neither  fed  nor  clothed  ;  nor  can  one  be  taken  care  of 
who  is  unable  to  feed  herself,  or  put  on  her  clothes,  by  placing  before  her 
food  and  raiment.  The  direction  in  the  will  to  take  care  of  the  com- 
plainant, enjoins  on  the  legatee  in  remainder,  both  personal  attention  to, 
and  support  of  her.  Upon  the  faithful  discharge  of  this  duty  during  her 
life,  depends  the  legacy  in  remainder.  It  is,  therefore,  purely  contin- 
gent, and  might,  if  the  complainant  had  thought  proper  to  pursue  that 
coarse,  have  been  entirely  defeated  by  a  sale  of  the  property  for  her 
support. 

y.  The  agreement  (as  it  is  called)  between  her  and  Amos  Tims,  to  give 
up  to  him  Flora  and  her  children,  and  receive  from  him  an  annuity  of  $30 
for  five  years,  cannot  be  sustained  as  a  bar  to  her  present  claim.  I  am 
not  disposed  to  say  that  the  complainant  has  not  sufficient  mind  to  make 
a  contract ;  for  her  brother,  who  must  know  her  better  than  any  other 
person,  says  she  has  as  much  understanding  as  common  women,  though 
but  little  acquainted  with  business.  If,  therefore,  there  was  no  other 
objection  to  it  as  a  contract,  I  think  it  could  not  on  this  ground  be  set 
aside.  As  to  this  *alleged  agreement,  the  defendants  must  be  re-  p-^^H. 
garded  as  complainants  seeking  a  specific  performance.  In  2  '- 
Powell  on  Contracts,  221,  the  rale  is  stated  to  be  "that  every  agreement, 
to  merit  the  interposition  of  a  Court  of  Equity  in  its  favor,  must  be  fair, 
just,  reasonable,  bona  fide,  certain  in  all  its  parts,  mutual,  useful,  made 
upon  a  good  or  valuable  consideration,  not  merely  voluntary  ;  consist- 
ent with  the  general  policy  of  a  well  regulated  society,  and  free  from 
fraud,  circumvention,  surprise  ;  or  at  least  such  an  agreement  must,  in  its 
effect,  ultimately  tend  to  produce  a  just  end."  According  to  this  rule, 
this  agreement  cannot  be  sustained  as  a  contract,  specifically  to  be 
enforced  in  Equity.  For  it  is  neither  fair,  just,  reasonable,  mutual,^  nor 
upon  a  good  or  valuable  consideration.  As  to  the  complainant,  it  is 
without  consideration,  and  is  purely  voluntary.  For  she  only  received, 
or  was  to  receive  a  part  of  that  to  which  she  was  before  legally  entitled. — 
But  regarding  this  agreement  as  it  ought  to  be,  as  a  voluntary  arrange- 
ment, by  which  she  agreed  to  accept  $30  per  annum,  iu  lieu  of  being 


44  SOUTH   CAROLINA   EQUITY    REPORTS.  [*57 

taken  care  of  by  the  representatives  of  her  sister,  and  that  it  is  set  up  as 
a  defence  to  any  claim  which  the  complainant  makes,  for  arrearages  of 
support  and  maintenance,  which  she  might  otherwise  have  claimed  under 
her  father's  will,  I  think  it  would  avail  the  defendants,  so  far  as  to  pre- 
vent the  account  against  them  from  being  carried  beyond  the  time  at 
which  the  bill  was  filed.  For  it  was  on  her  part,  a  voluntary  acceptance 
of  the  annuity  of  $30,  as  a  performance  of  the  condition  of  the  will ;  and 
in  this  point  of  view  it  stands  as  a  substitute,  so  long  as  she  was  willing 
to  receive  it  in  place  of  her  claim  under  the  will,  and  until  she  gave 
notice  that  she  required  the  latter  to  be  complied  with.  This  arrange- 
ment being  purely  voluntary,  and  without  any  adequate  consideration 
moving  to  her,  cannot  be  regarded  as  an  agreement  or  a  contract ;  it  is 
merely  evidence  that  the  condition  in  the  will  was  performed.  She  had 
the  right  to  end  the  arrangement  when  she  pleased, *by  giving  notice  to 
the  parties  bound  to  perform  the  condition.  This  was  done,  by  her  letter 
<j:ro-]  to  Amos  Tims  in  *the  winter  of  1829  or  '30  ;  but  as  she  did  not 
-'  make  any  claim  for  an  allowance  to  be  paid  to  her  for  support,  until 
the  filing  of  her  bill,  and  as  in  it,  she  does  not  ask  for  past,  but  for 
present  and  future  support  and  maintenuuce,  she  can  only  have  a  decree 
for  her  support  and  maintenance,  to  commence  at  the  day  on  which  her 
bill  was  filed.  For  this  annual  allowance,  the  defendants  in  their  answer 
profess  to  be  willing  to  be  made  liable  ;  they  must  pay  such  sum  as  may 
be  due  at  the  next  Court,  and  secure  to  be  paid  in  future  annually,  during 
the  life  of  the  complainant,  such  sum  as  may  be  fixed  by  the  Commis- 
sioner's report,  as  a  suitable  annual  allowance,  or  be  barred  from  any 
claim  to  the  remainder  in  the  said  slaves. 

4.  As  to  the  amount  of  $175,  fixed  by  the  Commissioner's  report,  as  a 
suitable  allowance  to  be  paid  by  the  defendants  for  the  complainant's 
support  and  maintenance,  we  see  no  reason  to  think  that  it  is  contrary  to 
the  weight  of  the  evidence  before  him  But  upon  a  question  of  fact,  the 
concurrence  of  the  Commissioner  and  Chancellor  is  generally  decisive 
with  this  Court.  It  would  be  only  on  very  extraordinary  occasions,  that 
we  should  (if  at  all)  undertake  to\-evise  their  conclusion. 

5.  With  the  question  of  costs,  we  should  not  be  disposed  to  interfere. 
It  was  a  matter  of  discretion  with  the  Chancellor  ;  and  we  cannot  see 
that  it  has  been  improperly  exercised.  But  as  the  case  must  go  back  for 
the  purpose  of  making  additional  parties,  (unless  the  defendants  should 
hereafter  waive  the  objection,)  the  question  of  costs  must  be  reserved 
until  the  case  shall  be  finally  adjudicated  by  the  Circuit  Court. 

It  is  ordered  and  decreed,  that  the  case  be  remanded  to  the  Circuit 
Court,  and  that  the  complainant  have  leave  to  amend  her  bill  (without 
the  payment  of  costs,)  by  making  the  administrator  of  Mary  Tims,  de- 
ceased, and  Amos  Tims,  parties  ;  but  if  the  defendants  are  disposed  to 
waive  the  objection  of  the  want  of  parties,  they  may  do  so  upon  filing 
with  the  Commissioner  within  three  months,  their  consent  to  waive  it.  In 
*59l  *^^^  *^^®"^'  *'^^  ^^^^^^  of  the  Circuit  Court  is  modified  *according 
-•  to  the  principles  contained  in  this  opinion,  and  the  Commissioner  is 
dn-ected  to  ascertain  and  report  to  the  next  Court,  the  sum  which  will  then 
be  due  to  the  complainant  for  maintenance  from  the  filing  of  her  bill,  at 
SI 75  per  year,  and  that  he  cause  the  defendants  to  exe'cute  bond,  with 
good  personal  security  to  be  approved  by  him,  conditioned  for  the  pay- 


*59]  COLUMBIA,    JANUARY,    lS3b.  45 

ment  of  $175,  from  the  next  Circuit  Court  of  Equity  for  Chester,  to  the 
complainant,  during  her  life. 

Johnson  and  Harper,  Js.,  concurred. 


BUCKNER  HaIGOOD  V.  JOHN  D.  WeLLS, 

Trustees  of  estates  shall  not  exceed  in  expenditure  the  amount  of  the  income,  so  as 
to  charge  the  capital ;  in  some  cases  of  necessity  this  has  been  sanctioned  by  the 
Court:  (a)  but  where  the  defendant  had  assumed  tlie  management  of  a  testator's 
estate  without  authority,  and  refused  to  qualify  as  executor,  it  was  held  that  he 
was  not  entitled  to  the  privileges  of  a  trustee.  The  Court  would  not  require  him 
to  give  security,  but  ordered  him  to  account  annually  before  the  Commissioner, 
until  he  qualified,  and  that  no  balance  should  be  struck  in  his  favor,  nor  allowance 
made  for  his  personal  services.   [*60] 

The  Court  will  not  discharge  an  executor  from  his  office.    [*61] 

William  Haigood,  deceased,  by  his  last  will  and  testament,  executed  in 
1821,  devised  and  bequeathed  his  estate  to  his  wife  and  children,  and 
directed  his  execittors  to  keep  the  negroes  on  the  plantation,  for  the  sup- 
port of  the  family,  until  his  youngest  child  should  come  of  age  (which 
will  be  in  1838,)  and  that  then  they  shall  be  equally  divided  among  his 
children  ;  and  appointed  his  wife,  Nancy  Haigood,  and  the  plaintiff,  his 
brother,  his  executrix  and  executor.  Nancy  Haigood  refused  to  qualify ; 
the  plaintiff  did,  and  took  on  himself  the  execution  of  the  will,  in  the 
payment  of  debts  and  in  the  management,  for  some  time,  of  the  planta- 
tion, for  the  maintenance  of  the  family.  In  1828,  Nancy  Haigood  married 
the  defendant.  Wells,  who  thereupon  assumed  the  exclusive  management 
of  the  negroes  and  plantation,  has  received  the  avails  of  the  crops,  and 
refuses  to  qualify  as  executor.  The  bill  charges  that  the  defendant  lat- 
terly refuses  to  account  to  him  as  executor  ;  that  the  plaintiff's  liability  is 
endangered  ;  and  prays  for  a  discharge  from  the  executorship  ;  and  that 
the  defendant  may  account,  and  be  required  to  give  security  for  the  man- 
agement of  the  estate. 

*The   case  was    first   heard   before    Chancellor   Thompson,   at  r^^n 
Winnsboro',  who  refused  to  relieve  the  plaintiff  from  his  executor-  ^ 
ship,  or  to  require  the  defendant  to  give  security,  but  ordered  him  to 
account. 

Under  this  order  the  Commissioner  stated  an  account  bctweeu  the 
estate  and  the  defendant,  and  reported  a  balance  in  his  favor. 

On  the  case  coming  before  Chancellor  De  Suassure,  at  July  Terra, 
1832,  on  exception  to  the  Commissioner's  report,  he  so  modified  the 
report,  as  to  strike  off  the  balance  reported  in  favor  of  the  defendant,  on 
the  ground,  that  a  trustee  of  an  estate  for  the  support  of  minors,  should 
not  expend  more  than  the  income. 

From  these  decrees  both  parties  appealed :  the  plaintiff,  because  the 
Chancellor  had  refused  to  relieve  him  from  his  executorship,  or  to  require 
the  defendant  to  give  security ;  and  the  defendant  appealed,  because  the 


(a)  Black  v.  Blakely,  2  M'C.  Ch.  Rep. 


46  SOUTH   CAROLINA   EQUITY   REPORTS.  [*60 

Chancellor  refused  to  allow  liim  the  balance  reported  in  his  favor,  which, 
as  he  alleges,  was  for  the  necessary  expenditures  of  the  family. 

f*eareson,  for  the  plaintiff. 

Clarke  and  IPDoivell,  for  the  defendant. 

Harper,  J.  With  respect  to  the  defendant's  first  ground  of  appeal, 
we  concur  with  the  Chancellor,  that  trustees  of  estates  for  the  support  of 
minors  "  shall  not  exceed  in  expenditure  the  amount  of  the  income,  so  as 
to  charge  the  capital  of  the  estate."  In  some  cases,  however,  of  manifest 
necessity,  this  has  been  authorized  by  the  Court,  and  when  done  by  a 
trustee  in  such  a  case  as  the  Court  would  have  authorized,  has  been  sub- 
sequently sanctioned.  But  the  defendant  is  not  entitled  to  the  privileges 
of  a  trustee  ;  he  must  be  regarded  in  some  degree  as  a  wrong  do€?r.  We 
gather  from  the  Commissioner's  report,  that  up  to  1826,  the  defendant 
acted  as  the  agent  of  the  complainant,  in  the  management  of  the  estate, 
and  accounted  to  him  for  the  crops,  but  after  that  year  refused  or  neglec- 
ted to  account.  He  has  thus  left  complainant  responsible  for  the  man- 
^p,  -,  agement  of  the  estate,  though  he  has  excluded  him  from  the  *coutrol 
-J  of  it,  and  when  he  might  have  relieved  him  of  that  responsibility,  by 
qualifying  as  an  executor  himself.  He  has  besides,  though  reported  to 
be  industrious  and  frugal,  managed  badly.  If  managed  properly,  the 
property  would  in  all  probability  have  supported  the  family  from  the 
income.  This  is  a  sufficient  reason  to  prevent  the  defendant's  breaking 
in  upon  the  capital. 

We  cannot  discharge  the  complainant  of  his  office  of  executor.  This 
Court  changes  other  trustees  upon  proper  cause  shown  ;  but  this  has 
never  been  done  in  the  instance  of  an  executor.  Nor  do  we  perceive  that 
we  can  compel  the  defendant  to  give  security.  He  might  be  restrained 
from  meddling  with  the  management  of  the  estate,  and  be  compelled  to 
give  up  the  control  of  it  to  the  complainant ;  but  this  is  not  what  the 
complainant  desires,  and  it  would  be  extremely  inconvenient.  The  family 
are  to  be  supported  by  the  estate,  they  must  live  on  the  land  and  have  the 
services  of  the  slaves,  and  it  is  a  matter  of  almost  absolute  necessity,  that 
these  should  be  in  some  degree  under  the  control  of  the  defendant,  the 
head  of  the  family. 

What  we  can  do,  however,  is  to  confirm  the  decree  of  the  Chancellor, 
that  no  balance  shall  be  struck  in  his  favor,  and  further  to  decree  that 
until  the  defendant  shall  think  proper  to  qualify  as  executor,  he  shall 
account  annually  before  the  Commissioner ;  that  in  no  instance  shall  any 
balance  be  struck  in  his  favor,  nor  shall  any  thing  be  allowed  for  his 
personal  services.  The  decree  of  the  Chancellor  is  modified  accord- 
ingly. 

Johnson  and  O'Neall,  Js.  concurred. 


'62]  COLUMBIA,   JANUARY,    1833.  47 


*MiCHAEL  Lever  v.  Wm.  Lever,  Executor  of  George  Lever,  y^ 

deceased.  ["^^^ 

The  possession  of  an  agent  or  bailee  is  not  adverse  until  after  demanrl ;  and  when 
an  a<ient  or  attorney  receives  money  for  his  principal,  there  is  no  cause  of  action 
till  demand,  and  the  statute  of  limitations  does  not  begin  to  run  till  then.  [*67] 

Where  a  note  is  signed  only  by  the  maker  affixing  his  mark,  and  the  subscribino- 
witness  is  the  executor  of  the  (deceased)  payee,  the  note  cannot  be  given  in 
evidence  on  proof  the  handwriting  of  the  witness;  it  must  be  shown  that  the  note 
existed  before  the  witness'  interest  accrued.  [*t38] 

'"  The  bill  states,  that  on  the  plaintiff's  attaining  full  age,  George  Lever, 
his  father  and  the  defendant's  testator,  proposed  to  undertake  the  man- 
agement and  control  of  his  estate,  and  to  transact  all  his  business,  on  the 
ground  of  his  mental  imbecility  and  want  of  education,  which  was  agreed 
to  by  the  plaintiff;  that,  accordingly,  his  father,  for  about  sixteen  years, 
and  until  his  death,  did  transact  his  business  and  manage  his  estate,  as  an 
agent  or  trustee,  and  receive  several  large  sums  of  money  and  the  pro- 
ceeds of  the  plaintiff's  crops,  for  which  he  never  accounted.  That  during 
this  period  he  received  from  George  Lever  several  small  sums  of  money, 
for  which  he  gave  his  notes,  as  it  was  understood,  to  serve  as  a  memo- 
randa of  the  amounts  received  by  him  out  of  his  own  funds  in  his  father's 
hands ;  but  that  the  defendant  has,  since  the  death  of  George  Lever, 
commenced  suit  on  these  notes  against  the  plaintiff.  That,  on  one  occa- 
sion, the  said  George  Lever  induced  the  plaintiff  to  confess  a  judgment  to 
him,  for  $251,  for  the  purpose,  as  he  told  him,  of  protecting  him  against 
a  scheme  which  certain  designing  persons  had,  to  defraud  him  of  his  land, 
and  that  by  confessing  this  judgment  the  land  would  be  secure.  And 
that  this  judgment,  thus  fraudulently  obtained,  the  defendant  is  about  to 
enforce.  The  bill  prays  an  account ;  and  a  perpetual  injunction  against 
the  judgment,  and  further  proceedings  on  the  notes. 

The  defendant,  in  his  answer,  denies  that  George  Lever  was  the  agent 
or  trustee  of  the  plaintiff ;  but  admits  that  he  received  several  sums  of 
money,  which,  however,  he  disbursed  for  the  plaintiff's  use.     As  regards 
the  judgment,  he  avers  his  belief  that  it  was  confessed  to  secure  certain 
debts  then  owing  to  George  Lever,  and  to  imdemnify  him  against  simdry 
liabilities  which  he  had  incurred  for  the  plaintiff.     That  the  several  notes 
referred  to  by  the  plaintiff,  were  not  given  as  he  alleges,  as  memoranda, 
but  for  value   received,  and  that  wlien   they  were   respectively  given, 
*the  said  George  Lever  fully  accounted  and  settled  with  the  plain-  r-^^^ 
tiff,  for  all  moneys  previously  received,  and  at  such  times  there  were  '- 
balances  due  to  him,  for  which  the  notes  were  given,  and  that  the  defend- 
ant was  himself  present,  on   these   occasions,  and  drew  tlic  notes  and 
witnessed  them.     The  answer  sets  up  these  various  accountings  and  set- 
tlements, by  way  of  plea  in  bar,  to  any  account  up  to  the  date  of  the  notes, 
and  pleads  the  statute  of  limitations. 

The  evidence  showed  that  George  Lever  acted  as  the  ])laintiff's  agent 
or  trustee,  in  the  transaction  of  his  business,  and  that  he  received  the 
avails  of  the  crops,  and  several  large  sums  of  money.  It  was  proved, 
also,  that  George  Lever  when  about  making  his  will  said  "he  intended  to 
satisfy  the  judgment  he  held  on  Michael,  and  to  give  him  up  his  laud 


48  SOUTH    CAROLINA    EQUITY    REPORTS.  [*63 

titles ;  he  beld  the  judgment  to  keep  people  from  defrauding  him  of  his 
land,  bnt  lie  would  give  up  the  judgment,  and  if  he  fooled  away  the  land, 
he  must  do  it."  In  support  of  his  plea  of  a  former  account  and  settle- 
ment between  the  pai'ties,  the  defendant  produced  the  notes  referred  to  in 
his  answer,  to  which,  as  it  seemed,  the  plaintiff  had  affixed  his  mark,  and 
offered  to  prove  their  execntion  by  proof  of  his  own  (defendant's)  signa- 
ture, as  the  subscribing  witness.  The  Chancellor  held,  that  this  was  not 
sufficient  to  authorize  the  notes  to  be  received,  and  rejected  them. 

The  case  came  to  trial  at  Newberry,  July  Term,  1832,  and  the  follow- 
ing decree  was  afterwards  delivered. 

September,  1832.  Johnston,  Chancellor.  The  allegation,  that  the 
notes  taken  by  George  Lever  from  the  plaintiff,  were  intended  merely  as 
memoranda,  may  be  true,  but  there  was  uo  proof  to  support  it,  and  that 
part  of  the  bill  must  fail.  I  think  the  proof  is  sufficient  to  establish  the 
allegation,  that  the  two  hundred  and  fifty-seven  dollars'  judgment  was  con- 
fessed to  cover  the  plaintiff's  land  from  crafty  speculations.  The  defend- 
ant's answer  on  this  point,  is  not  as  of  his  own  knowledge,  and  requires 
less  proof  to  rebut  it,  than  if  it  had  been.  I  shall  therefore  sustain  that 
part  of  the  ))ill ;  but  the  injunction  to  restrain  the  enforcement  of  the 
execution,  will  continue  only  until  further  order — it  being  the  intention  of 
^n^-^  the  Court  to  ^perpetuate  it,  in  case  the  accounts  on  the  other  part  of 
-J  the  case  hereinafter  to  be  ordered,  shall  result  in  favor  of  the  plain- 
tiff; but  if  in  favor  of  the  defendant,  then  to  make  the  judgment  stand  as 
collateral  security,  for  the  balance  which  shall  be  struck  in  his  favor. 

The  great  difficulties  of  the  case,  however,  concern  the  other  parts  of 
the  bill,  which  charge  that  George  Lever  undertook  to  act,  and  did  act  as 
trustee  of  the  plaintiff.  I  think  the  proof,  that  he  did  so  undertake  and  act, 
is  clear  and  conclusive.  His  own  admissions  were  too  numerous  to  leave  a 
doubt  of  the  fact.  I  have  not  only  uo  doubt  that  he  acted  as  the  plain- 
tiff's trustee,  but  I  am  constrained  to  say  I  do  not  believe  he  fully  per- 
formed his  trust.  On  the  contrary,  I  am  fully  persuaded  that  at  his 
death  he  was  largely  in  arrear  to  the  plaintiff.  The  sums  received  by 
him  from  time  to  time,  were  too  large  to  have  been  absorbed  in  the  plain- 
tiff's annual  expenses.  It  is  pretty  clear  that  these  could  not  have  so  far 
exceeded  the  crops,  as  to  have  given  room  for  the  sums  received  from 
Snelgrove  and  others,  and  from  Caldwell.  If  he,  acting  as  agent,  per- 
mitted the  expenses  to  run  to  such  an  amount,  it  wears  so  much  the 
appearance  of  neglect  and  unfaithfulness,  that  he  ought  to  have  secured 
ample  vouchers,  either  from  Michael's  creditors,  or  from  Michael  himself, 
to  show  that  he  paid  out  these  exorbitant  sums — exorbitant  considering 
the  means  of  Michael.  But  so  far  from  it,  the  circumstantial  evidence  is 
very  strong  against  him,  and  particularly  to  show,  that  the  money  received 
by  him,  from  Mr.  Caldwell,  was  by  him  vested  in  the  land  now  owned  by 
William  Lever.  These  remarks  will  show,  that  I  am  far  from  believing 
the  plea  of  settlement  to  be  founded  on  fact. 

Having  this  view  of  the  case,  believing  as  I  do,  conscientiously,  that 
the  moral  justice  of  the  case  is  clearly  with  the  plaintiff,  I  cannot  express 
the  regret  which  I  feel  in  being  compelled  to  sustain  the  plea  of  the  act 
of  hmitations.  But  I  am  to  declare,  and  not  to  make  the  law.  That  is 
the  provmce  of  the  people.  I  am  bound  to  decide  the  case  made  before 
me.     Ihe  case  made,  in  my  conception,  is  one  to  which  the  act  is  a  good 


*64]  COLUMBIA,   JANUARY,    1833.  49 

defence.  If  it  *had  been  alleged,  that  George  Lever  vested  the 
sums  received  by  him  from  Caldwell,  in  the  purchase  of  Paysinger's  L"^"^ 
land,  it  would  have  been  worthy  of  inquiry,  whether  a  trust  did  not 
result  to  the  plaintiff.  But  no  such  fact  is  alleged.  The  case  set  out 
in  the  bill,  is  one  of  money  received  by  George  Lever,  to  be  expended 
for  the  benefit  of  the  plaintiff.  It  is  not  denied  but  that  the  case  is  one 
of  trust.  Every  bailment,  every  agency,  is  a  trust.  But  it  is  a  vulgar 
error  to  suppose  that  every  trust  is  exempted  from  the  operation  of  the 
act  of  limitations.  (Kane  v.  Bloodgood,  7  John's.  Ch.  Rep.  90.)  On 
the  contrary,  no  trust  is  exempted  from  its  operation,  but  one  which  is 
express,  technical  and  continuing  ;  and  one,  moreover,  the  remedy  for  the 
breach  of  which  is  exclusively  in  this  Court.  The  latter  part  of  this 
position  is  what  governs  in  this  case.  When  there  is  a  concurrent 
remedy  in  law  and  equity  upon  the  case  made,  the  limitation  is  the  same 
in  both  Courts.  Otherwise,  a  plaintiff  by  electing  his  tribunal,  might  cut 
his  opponent  off  from  a  defence,  to  which  the  law  of  the  land  entitles 
him.  (20  John.  Rep.  5T6 ;  7  John.  Ch.  Rep.  Ill,  U,  21  ;  Salk.  243, 
610;  3  Bro.  639,  note;  2  Sch.  &  Lef.  607;  Willes'  Rep  401,  405.) 
Now  there  can  be  little  doubt  but  that  the  plaintiff  could  have  main- 
tained an  action  at  law  against  his  father,  for  each  sum  received  by  him 
as  he  received  it,  and  to  the  same  extent  that  he  would  be  bound  at  law 
by  his  laches,  is  he  bound  in  this  Court.  He  is  bound,  as  to  all  sums 
received  more  than  four  years  and  nine  months  before  the  filing  of  this 
bill.  I  have  paid  no  attention  to  the  incapacity  of  Michael,  because  it 
was  not  needed  to  render  it  more  probable  that  his  father  undertook  to 
act  for  him.  The  other  proof  put  that  matter  beyond  doubt  in  my 
mind.  And  this  was  the  only  view  with  which  I  received  the  testimony 
on  that  point.  I  could  not  have  received  it,  if,  with  a  view  to  free  him 
from  the  rules  of  law  w^hich  would  have  applied  to  him,  if  he  had 
possessed  the  strongest  mind.  This  is  not  a  question  of  fraud,  but  of 
trust.  And  as  to  the  act  of  limitations,  strength  or  weakness  of  mind 
can  make  no  difference,  unless  there  be  a  total  incapacity.  If  that  was 
intended  to  be  shown,  other  consequences  would  have  ensued.  The  same 
proof  would  have  shown  that  the  ^plaintiff  could  not  institute  this  j-^^p 
suit,  and  the  bill  should  be  dismissed,  as  having  been  filed  by  one  ^ 
incapable  of  binding  himself. 

It  is  decreed,  that  the  Commissioner  take  an  account  on  reference, 
when  he  shall  charge  the  estate  of  George  Lever,  with  all  suras  which 
shall  be  proved  to  have  been  received  by  him,  as  agent  or  trustee  of  the 
plaintiff,  within  four  years  and  nine  months  before  the  filing  of  this  bill — 
allowing  all  proper  credits  and  disbursements ;  that  an  injunction  do  issue 
to  restrain,  until  the  further  order  of  the  Court,  the  collection  of  the 
judgment  described  in  the  bill  as  having  been  entered  in  the  Common 
Pleas  for  Newberry  District,  the  10th  January,  1827,  and  that  the  costs 
of  this  suit  be  paid  out  of  the  estate  of  George  Lever. 

From  this  decree  both  parties  appealed.  The  plaintiff  appealed  from 
so  much  of  the  decree  as  sustains  the  statute  of  limitations :  and  the  de- 
fendant appealed  on  the  grounds  that  the  Chancellor  enjoined  the  judg- 
ment without  sufficient  evidence  that  it  was  fraudulently  obtained,  and  if 
it  had  been  so  obtained,  the  plaintiff  was  iMiHicejis  criminis,  and  not 
YoL.  L— 4 


50  SOUTH   CAROLINA   EQUITY   REPORTS.  [*66 

entitled  to  relief;  and  because  the  Chancellor  rejected  the  notes,  on  the 
proof  which  was  offered  of  their  execution. 

Summer,  for  the  defendant,  insisted  that  the  judgment  was  to  be  con- 
sidered as  founded  on  a  valuable  consideration,  and  as  prima  facie  valid, 
until  the  contrary  was  proved  ;  and  that  the  evidence  given  to  impeach 
it  was  not  sufficient  to  authorize  the  decree  against  it.  As  regards  the 
moneys  for  which  an  account  is  claimed,  this  was  but  the  common  case  of 
money  had  and  received,  for  which  the  plaintiff"  could  maintain  his  action 
at  law:  trusts  against  which  the  statute  of  limitations  does. not  run, 
must  be  purely  technical — such  as  are  cognizable  only  in  equity  ;  but 
the  plaintiff's  demand  is  legal,  and  the  statute  applies  :  7  John.  Ch.  Rep. 
124;  20  John.  Rep.  516;  2  Atk.  '210.  As  to  the  evidence  on  the 
execution  of  the  notes,  he-  cited  2  N.  &  M'C.  364  ;  Strange,  34  ;  IP. 
W.  289  ;   1  Starkie,  342. 

5,.^h-|  Fair,  for  the  plaintiff,  contended  that  it  was  proven  *conclusively, 
-'  that  the  defendant's  testator  acted  as  the  plaintiff's  trustee,  and  his 
executor  cannot  disclaim  that  character  or  avoid  its  consequences ;  that 
the  statute  of  limitations  did  not  apply  to  this  case,  w^hich  was  one  of  a 
trust ;  and  in  any  event,  it  did  not  commence  running  until  after  a 
demand  of  the  money,  and  the  plaintiff's  rights  had  been  usurped  by  a 
refusal  to  pay  :  2  Bail.  51  ;  1  Taun.  572  ;  Willison  v.  Watkins,  1  Law 
Journal,  132  ;  5  John.  Ch.  Rep.  523.  As  to  the  effect  of  the  notes, 
and  the  proof  of  their  execution,  he  cited  1  P.  W.  289  ;  Salk.  386  ;  1 
Strange,  101  ;  5  T.  R.  371  ;   1  Starkie,  338. 

Poj^e,  for  the  defendant,  in  reply,  urged  that  the  answer  of  the  defend- 
ant, as  to  former  accounts  and  settlements,  being  positive  and  uncontra- 
dicted, should  be  regarded  as  sufficient  to  sustain  this  part  of  his  defence. 
As  to  the  evidence  on  the  notes,  he  referred  to  2  East,  182  ;  and  on  the 
statute  of  limitations,  to  Starke  v.  Starke,  4  Law  Journal,  503. 

Harper,  J.  I  shall  first  consider  the  complainant's  grounds  of  appeal. 
We  concur  with  the  Chancellor,  that  "  when  there  is  a  concurrent  remedy 
in  law  and  equity  upon  the  case  made,  the  limitation  is  the  same  in  both 
Courts,"  and  the  present  case  is  to  be  considered  as  at  law.  But  at  law, 
the  statute  does  not  begin  to  run  till  there  is  some  usurpation  of  the 
claimant's  right,  and  a  cause  of  action  has  arisen.  The  possession  of  an 
agent  or  bailee  (and  a  bailment  is  a  trust)  is  the  possession  of  the  bailor 
or  principal,  and  is  not  adverse  till  demand  made.  In  the  case  of  a 
simple  deposit  of  money,  to  be  left  for  the  depositor,  or  to  be  paid  accord- 
ing to  his  direction,  there  is  no  cause  of  action  till  demand  be  made  or 
an  account  stated,  and  the  statute  does  not  begin  to  run  till  then.  So  in 
the  case  of  an  attorney,  who  receives  the  money  of  his  client,  or  a  sheriff 
who  receives  the  money  of  a  plaintiff  in  execution.  So  of  a  steward  or 
factor.  Topham  v.  Braddick,  1  Taunt.  572.  And  see  Chancellor 
Kent's  decision  in  Coster  v.  Murray,  5  Johnson's  Ch.  Rep.  531.  On 
this  ground,  then,  we  think  the  Chancellor's  decree  must  be  reversed  ; 
and  this  disposes  of  all  the  complainant's  grounds  of  appeal. 
*68]  *With  respect  to  the  defendant's  appeal  from  so  much  of  the 
Chancellor's  decree  as  regards  the  judgment  confessed  by  the  com- 
plauiant  to  George  Lever,  we  are  inclined,  though  the  testimony  was  not 
very  full,  to  concur  with  the  Chancellor,  who  could  best  judge  of  the  effect 
of  the  evidence.    If  the  defendant  desires  it,  however,  he  may  have  an 


*(38]  COLUMBIA,    JANUARY,    1833.  51 

issue  or  issues  to  a  jury,  to  inquire  whether  the  judgment  was  founded  on 
any,  and  what  consideration,  or  was  voluntary — whether  it  was  fraudu- 
lent, or  intended  as  a  security,  and  if  intended  as  a  security,  how  much 
is  due  upon  it.  At  the  same  time  an  issue  may  be  taken  to  try  the  plea 
of  final  account  and  settlement. 

With  respect  to  the  appeal  from  the  decision  of  the  Chancellor,  reject- 
ing the  evidence  of  the  defendant's  handwriting,  to  prove  the  execution 
of  the  notes,  we  concur  with  the  Chancellor.  The  cases  referred  to  in 
the  argument,  do  establish,  that  where  a  subscribing  witness  to  a  note  or 
obligation  becomes  interested  or  is  appointed  executor,  it  may  be  given 
in  evidence,  upon  proof  of  his  handwriting.  But  in  those  cases,  I  take 
it  for  granted,  the  instrument  was  signed  by  the  maker's  own  hand,  the 
genuineness  of  which  signature  might  be  the  subject  of  investigation,  or 
that  the  instrument  was  shown  to  have  been  in  existence  before  the 
witness's  interest  accrued.  The  door  which  would  be  opened  to  fraud,  is 
conclusive  against  the  reception  of  such  evidence  in  a  case  like  the 
present.  Every  executor  might  manufacture  as  many  notes  as  he  pleased, 
of  persons  unable  to  write,  and  recover  them,  under  proof  of  his  own 
handwriting  as  subscribing  witness.  It  might  be  different  if  the  defend- 
ant had  shown  that  the  notes  attested  by  him  were  in  the  possession  of 
George  Lever,  in  his  lifetime,  and  found  by  the  defendant  among  his 
testator's  papers. 

The  decree  of  the  Chancellor  is  modified  according  to  the  views 
expressed. 

Johnson  and  O'JSTeall,  Js.,  concurred. 


*Wm.  Clarke  and  Wife  v.  James  Saxon  and  Anne  Saxon.    [*69 

The  plaintiff  sbould  set  out  in  his  bill,  his  title,  and  the  grounds  on  which  he  expects 
to  recover,  and  the  proof  should  correspond  with  the  allegations  contained  in  it; 
but  if  parties  go  to  trial,  on  general  statements,  contained  in  a  bill  or  answer, 
and  permit  proof  to  be  given  which  ought  to  have  been  exhibited  on  the  record, 
the  Court  is  bound  to  decree  on  the  case  thus  made,  if  enough  appears  on  the 
record  to  warrant  the  judgment,  which  the  facts  proved,  authorize  the  Court  to 
pronounce.  [*71] 
On  a  bill  filed  to  compel  defendants  to  give  security  for  the  forthcoming  of  property, 
to  entitle  the  plaintiffs  to  a  decree,  it  is  not  necessary  that  a  case  of  trust  created 
by  express  contract  should  be  made  out.  [*7.3] 
Where  a  feme  covert  has  a  separate  estate  for  life  in  some,  and  undivided  interest 
as  tenant  in  common,  in  others,  of  the  slaves  in  question,  she  is  a  trustee  for 
those  claiming  in  reversion  and  as  co-tenants ;  and  on  a  bill  filed  to  compel  her 
and  her  husband  to  give  security  for  the  forthcoming  of  the  property,  her  cover- 
ture cannot  be  jjleaded  in  bar  of  the  trust,  nor  in  abatement  of  the  suit ;  nor  can 
her  husband  avail  himself  of  the  statute  of  limitations;  but  on  proof  that  they 
intended  to  remove  the  slaves,  they  were  ordered  to  give  security  not  to  remove 
them  beyond  the  State.  [*74] 

This  bill  was  filed  to  restrain  the  defendants  from  removing  certain 
rslaves  out  of  the  State,  which  the  plaintiffs  claimed  in  reversion.  The 
defendant  Anne  Saxon  pleaded  coverture,  and  it  was  agreed  that  no 
other  answer  should  be  required  of  her,  and  that  the  costs  as  to  her. 


52  SOUTH    CAROLINA   EQUITY   REPORTS.  [*69 

should  abide  by  the  decision  of  the  Court  on  her  plea.  James  Saxon,  by 
his  answer,  sets  up  title  in  himself  by  purchase,  and  under  the  statute  of 
limitations. 

Chancellor  Johnston,  before  whom  the  case  came  to  a  hearing  at 
Laurens,  July,  1833,  sustained  the  plea  of  coverture  ;  and  dismissed  the 
bill  on  the  ground  that  a  trust  was  neither  charged  in  the  bill  nor  estab- 
lished by  the  evidence.  From  this  decree  the  plaintiffs  appealed  The 
allegations  of  the  bill,  and  the  evidence  given  on  the  trial,  are  so  fully 
stated  in  the  opinion  of  the  Court,  as  to  require  no  further  report. 

Farroio  and  Thovison,  for  the  appellants. 

Irhy  and  Young,  contra. 

O'Xeall,  J.  It  appears  from  the  proof,  that  Edmund  Craddock,  on 
the  17th  of  March,  1789,  conveyed  to  James  Yancy,  in  trust  for  the 
children  of  the  said  Edmund,  to  wit,  Mary,  Anne,  Edmund,  Thomas, 
John  and  Judith,  inter  aha,  two  slaves,  Reuben  and  Dave.  Some  time 
after  the  execution  of  this  deed,  the  said  Edmund  died,  and  his  widow- 
Anne  administered  on  his  estate,  and  after  some  time  interraaiTied  with 
Barnes  Saxon  ;  the  trustee  James  Yancy  is  dead,  and  his  children  are  all 
either  dead  or  removed  from  the  State.  The  slaves  remained  in  the 
possession  of  the  widow  Anne,  from  the  death  of  the  said  Edmund  until 
her  marriage  with  the  said  James,  and  after  her  marriage  they  remained 
in  the  possession  of  herself  and  her  husband,  until  the  4th  of  April, 
1815,  at  which  time  James  Saxon  delivered  them  to  the  cestui  que  trusts, 
who  suffered  them  still  to  remain  in  the  possession  of  their  mother  (the 
defendant  Anne).  On  the  7th  day  of  August,  1815,  the  children  of 
Edmund  Craddock  exchanged  with  William  Clarke  the  man  Dave,  for  a 
^:.Q-j  girl  named  *Sylvia  and  $75  in  cash,  and  agreed  that  "  the  said  negro 
-^  and  money  is  to  be  put  to  the  support  of  their  said  mother,"  (the  de- 
fendant Anne)  "during  her  life,  or  more  plainly  speaking,  the  labor  of  said 
negro,  and  the  use  of  the  said  money  during  her  life."  On  the  8th  of 
January,  1818,  James  Saxon  execuud  to  the  children  of  Edmund 
Craddock,  a  deed  reciting  the  trust-deed  executed  by  Edmund  Craddock, 
and  his  delivery  of  the  property  described  in  it  to  the  cestui  que  trusts 
on  the  4th  of  April,  1815,  and  by  it  confirms  and  re-delivers  the  property 
to  them.  Reuben  remained  in  possession  of  Saxon  and  wife  until  1825, 
when  Robert  Creswell,  Esq.,  bought  him  in  the  presence  of  Saxon  and 
wife,  from  William  Clarke,  as  agent  for  the  children  of  Edmund  Crad- 
dock, at  the  price  of  400  or  450  dollars  ;  this  purchase  of  Reuben  was 
for  himself;  he  had  previously  paid  in  part  of  his  price  $190,  which  was 
laid  out  in  the  purchase  of  a  boy  Frank,  who  was  conveyed  in  the  first 
instance  to  Sarah  E.  Saxon,  a  daughter  of  the  defendants;  but  on  some 
dissatisfaction  being  expressed  by  the  complainant,  William  Clarke,  and 
some  of  the  children  of  Edmund  Craddock,  the  said  Sarah  conveyed  the 
saidjDoy  Frank,  to  William  Clarke,  in  trust  for  the  sole  and  separate  use 
of  Nancy  Saxon  (the  defendant  Anne)  during  her  life,  and  after  her 
death  for  the  use  of  her  children  by  Edmund  Craddock,  deceased. 
After  some  time  Frank  was  sold  or  exchanged  for  another  man  named 
\"^/i'  ^"^^  °"  Clarke  complaining  about  it,  it  was  agreed  that  Yirgil 
should  stand  in  place  of  Frank,  and  Brandon,  from  whom  he  had  been 


70] 


COLUMBIA,    JANUARY,    1833.  53 


bought,  on  the  10th  of  July,  1827,  executed  a  bill  of  sale  for  him  to  the 
complainant,  Clarke.  On  the  13th  of  January,  1825,  William  Moore 
conveyed  to  the  complainant,  Clarke,  as  trustee  for  the  heirs  of  Edmund 
Craddock  and  Mrs.  Anne  Saxon,  a  negro  girl  named  Sally ;  she  was 
probably  paid  for  out  of  the  balance  of  the  price  of  Reuben,  for  Mr. 
Cresvvell's  note,  for  it  was  presented  to  him  by  Moore,  who  sold  and  con- 
veyed her,  and  he  paid  it  to  him.  These  negroes,  to  wit,  Sylvia,  Virgil, 
and  Sally,  and  their  increase,  are  in  the  possession  of  the  defendants,  and 
are  now  claimed  by  James  Saxon  as  his  own  ;  but  it  is  manifest  from  the 
proof,  that  this  claim  is  a  recent  notion,  most  probably  the  effect  of  a  loss 
of  memory  from  old  *age,  and  the  consequent  belief  that  whatever  r-,_^.^,, 
is  in  his  possession  is  his  own.  The  testimony  of  Major  Dunlap  L  ' 
and  Mr,  Creswell,  most  clearly  show  that  to  the  original  trust  property 
and  its  substitute,  the  defendant  James  Saxon  did  not  pretend  to  have 
any  claim.  His  schedule  in  order  to  obtain  a  pension  from  the  United 
States,  was  sworn  to  by  him  at  Spring  Term,  1822,  and  in  it  he  does  not 
pretend  any  claim  to  the  slaves,  the  whole  amount  of  the  property 
embraced  in  it  is  about  $176.  It  is  not  pretended  that  any  of  these 
have  been  by  him  since  acquired.  The  defendants  were  about  removing 
from  the  State,  and  taking  with  them  the  said  slaves.  The  complainant 
Clarke  and  his  wife  Judith,  one  of  the  children  of  Edmund  Craddock, 
filed  their  bill  to  prevent  the  removal  of  the  said  slaves.  To  it,  the  de- 
fendant Anne  pleaded  coverture,  and  the  defendant  James  Saxon 
answered,  alleging  that  Reuben  and  Dave  were  his  own  property,  and 
that  the  other  negroes  substituted  for  them,  he  purchased  with  the  pro- 
ceeds of  Reuben  and  Dave,  and  $200  of  his  own  money. 

The  statement  in  the  bill,  under  which  this  proof  was  given,  after 
stating  the  execution  of  the  trust-deed,  is  as  follows,  to  wit  :  "that  the 
children,  although  all  come  of  age  long  since,  have  not  divided  said 
property  among  them,  but  have  consented  to  leave  the  same  in  the 
possession  of  their  mother,  Anne  Saxon,  during  her  life,  formerly  the 
wife  of  the  said  Edmund  Craddock,  now  the  wife  of  James  Saxon. 
That,  by  virtue  of  a  power  given  by  the  deed  aforesaid,  the  property  has 
been  to  some  extent  exchanged,  and  has  also  increased  so  that  there  are 
now,  as  your  orator  and  oratrix  believe,  eight  negroes  subject  to  the  said 
trust,  a  fellow,  two  wenches  and  children,  the  names,  of  some  of  whom 
are  unknown  to  your  orator  and  oratrix. "  The  bill  then  charges  that 
the  said  Anne  Saxon  and  her  husband,  James  Saxon,  are  about  to  re- 
move from  this  State,  and  carry  with  them  the  aforesaid  negroes,  contrary 
to  the  wishes  of  the  complainants. 

This  statement  of  the  complainant's  title  to  the  slaves,  and  of  the 
character  of  the  defendant's  possession,  is  certainly  a  very  general  and 
loose  one  ;  and  had  the  proof  been  ^objected  to  on  the  ground  that  ^,,2 
it  did  not  correspond  with  the  allegations  contained  in  the  bill,  it 
ought  not  to  have  been  received,  and  the  complainants  must  have 
amended  their  bill,  and  exhibited  the  papers  on  which  they  sought  to 
recover.  But  from  the  report  of  the  Chancellor,  no  such  objection  was 
made,  and  if  parties  go  to  trial  on  general  statements  contained  in  a  bill 
or  answer,  and  permit  proof  to  be  given,  which  onght  to  have  been  set 
out  and  exhibited,  the  Court  is  bound  to  decree  on  the  case  thus  made. 
It  is  true,  pleadings,  both  at  law  and  equity,  are  intended  for  the  two- 


54  SOUTH    CAROLINA   EQUITY   EEPORTS.  [*72 

fold  purpose  of  informing  both  the  parties  and  the  Court :  the  former  as 
to  the  case  to  be  made  and  answered  by  the  proof;  and  the  latter  as  to 
the  case  upon  which  judgment  is  to  be  rendered.  So  far  as  parties  are 
concerned,  the  value  of  this  rule  is  to  prevent  surprise.  If  a  defendant 
permits  evidence  to  be  given  under  a  general  charge,  without  objecting 
to  it,  it  is  taken  for  granted  that  he  is  not  surprised  by  it.  To  the  Court, 
the  only  importance  of  the  rule  is,  that  enough  should  appear  on  the 
record  to  warrant  the  judgment  which  the  facts  proved,  authorize  the 
Court  to  pronounce.  If  the  evidence  given  to  the  Court  makes  a  case 
wholly  foreign  from  that  made  by  the  bill  and  answer,  then  it  follows  that 
no  decree  can  be  pronounced  upon  it,  and  if  it  is  the  complainant's  proof, 
the  bill  must  be  dismissed.  The  inquiry  in  the  case  before  us  must  be  : 
first,  is  the  case  made  by  the  proof,  wholly  foreign  or  different  from  that 
made  by  the  bill,  and  resisted  by  the  answer.  The  case  as  made  by  the 
bill,  is  that  Edmund  Craddock  conveyed  the  slaves  Reuben  and  Dave  to 
James  Yancy,  in  trust  for  the  use  of  his  children,  that  the  cestui  que 
trusts,  instead  of  dividing  the  property  and  appropriating  it  to  their  own 
uses,  suffered  it  to  remain  in  the  possession  of  their  mother,  Anne  Saxon, 
during  her  life ;  that  the  property  has  been  exchanged  for  other  slaves, 
and  now  consists  of  a  fellow,  two  wenches  and  children.  The  defendant, 
James  Saxon,  answers  and  claims  not  only  the  substituted  slaves,  but 
those  conveyed  by  the  trust-deed,  as  his  own  property,  by  virtue  of  a 
purchase  made  by  him  of  them,  at  Sheriff's  sale  in  1T94  or  '95,  He 
;^,-o-|  admits  that  the  *slaves  substituted  for  the  trust  slaves,  were 
-^  acquired  by  exchange,  or  by  purchase,  with  the  proceeds  arising 
from  a  sale  of  them,  except  so  far  as  $200  excess,  which  he  alleges  he 
paid.  The  proof  given  Ijy  the  complainants  certainly  establishes  the 
original  trust,  and  that  by  the  consent  of  the  cestui  que  trud^^,  the 
original  property  has  been  exchanged  for  the  slaves  in  the  defendant's 
possession,  and  that  in  the  slaves  Sylvia  and  her  increase  and  Yirgil,  a 
part  of  the  property  thus  substituted,  they  have  given  the  defendant, 
Mrs.  Saxon,  an  estate  for  life  ;  and  so  far,  there  is  no  discrepancy 
between  the  proof  and  the  charge  contained  in  the  bill.  In  answer  to  the 
defendant's  claim  of  property,  his  deed  surrendering  all  right  to  it,  his 
schedule  made  out  and  sworn  to,  in  order  to  obtain  a  pension,  and  his 
declarations  to  Maj.  Duulap  and  Mr.  Creswell,  disclaiming  any  interest, 
were  plainly  admissible.  I  am  therefore  satisfied,  that  notwithstanding 
the  generality  of  the  statement  in  the  bill,  the  case  must  be  decided  on 
the  proofs  before  the  Court. 

I  think  the  Chancellor  was  mistaken  in  his  conclusion,  in  supposing 
that  to  entitle  the  complainants  to  a  decree,  it  was  necessary  that  a  case 
of  trust  created  by  contract,  should  be  made  out.  As  to  the  defendant, 
Mrs.  Saxon,  this  could  never  have  been  done,  for  her  coverture  might 
have  been  a  bar  to  any  contract  which  she  could  have  made.  According 
to  my  view  of  the  case,  the  defendants  are  trustees  in  legal  contemplation, 
for  the  children  of  Edmund  Craddock.  They  were  certainly  the  owners 
of  the  slaves,  Reuben  and  Dave,  in  August,  1815,  when  they  exchanged 
Dave  with  Clarke  for  Sylvia,  and  agreed  that  her  labor  should  be  devoted 
to  the  use  of  Mrs.  Saxon  for  life.  She  has  been  in  her  possession  ever 
smce,  and  when  it  is  asked  how  she  was  entitled  to  hold  her,  the  answer 
is  plam— by  the  consent  of  her  owners,  she  was  entitled  during  her  life  to 


*73]  COLUMBIA,    JANUARY,    1833.  55 

the  possession  of  the  said  slave.     This  made  her  tenant  for  life  with  rever- 
sion to  the  owners,  her  donors.     From  the  proof,  Reuben  was  sold  b)- 
Clarke,  as  the  agent  of  the  children  of  Edmund  Craddock,  and  by  the 
consent  of  Mr.  and  Mrs.  Saxon,  out  of  the  proceeds  of  his  sale,  Frank 
and  Sally  were  purchased.     The  first  was  originally  *conveyed  to  a  p^_ 
daughter  of. these  defendants,  Sarah  E.  Saxon,  but  she  afterwards  L    '* 
conveyed  him  to  the  complainant,  Clarke,  in  trust  for  the  sole  and  sepa- 
rate use  of  Mrs.  Saxon,  during  life,  and  after  her  death,  for  the  use  of  the 
children  of  Edmund  Craddock.     He  was  afterwards  sold  or  exchanged 
for  Virgil,  and   he  was   conveyed   absolutely  to   Clarke.     But   a   trust 
resulted  from  the  fact  that  he  was  purchased  with  the  trust  fund.     And 
Clarke  held  him  subject  to  the  trusts  created  by  the  deed  of  Sarah  E. 
Saxon,  conveying   the  boy  Frank.     Mrs.  Saxon  was,  therefore,  clearly 
entitled  to  a  life  estate  in  him,  and  her  and  her  husband's  possession  of 
him,  must  be  referred  to  that  title.     The  girl   Sally  was  conveyed  to 
Clarke,  in  trust,  for  the  use  of  the  children  of  Edmund  Craddock  and 
Mrs   Saxon.     Her  possession  of  that  slave  (or  if  she  was  exchanged  for 
another  called  Crees,  as  I  suppose  may  be  the  case  from  the  answer  of 
James   Saxon,)  would  be  the  possession  of  a  tenant  in  common,  of  » 
chattel  belonging  to  several.     I  have  little  doubt  that  it  was  intended 
that  she  should  have  a  life  estate  in  this  slave  also  ;  but  from  the  proof  in 
the  case,  we  should  be  bound  to  conclude,  that  her  only  interest  was  that 
of  a  tenancy  in  common  with  her  children  by  Edmund  Craddock.     From 
the  statement  in  the  bill,  an  inference  might  be  raised,  that  she  had  a  life 
estate  in  this  slave,  as  well  as  the  interest  in  common,  which  the  bill  of 
sale  from  Moore  to  Clarke  as  trustee,  gives  her.     From  these  views  it  is 
apparent,  first,  that  James  Saxon  has  no  title  to  the  said  slaves  ;  secondly, 
that  Mrs.  Saxon  is  entitled  to  a  separate  estate  for  life  in  the  slaves  Sylvia 
and  her  increase  and  Yirgil — and  that  she  has  an  undivided  interest  as 
tenant  in  common  with  the  children  of  Edmund  Craddock,  in  the  slave 
Sail  (or  Crees)  and  her  increase,  and  possibly  a  life  estate  in  addition 
thereto.     It  is  clear  that  her  possession,  and  consequently  the  possession 
of  her  husband,  must  be  referred  to  these  titles.     There  can  be  no  doubt 
after  the  case  of  Swann  v.  Ligon,  that  a  tenant  for  life  is  a  trustee  for  the 
remainder  man,  and  the  rule  must  be  the  same  in  favor  of  reversioners. 
So,  too,  in  equity,  so  far  as  the  preservation  of  the  whole  property  is  con- 
cerned, a  tenant  in  common  is  a  trustee  for  his  co-tenants  ;  for  his  posses- 
sion is  their  possession.*    In  respect  to  her  separate  estate  for  life,  p^^^ 
and  her  interest  in  common,  it  was  necessary  that  Mrs.  Saxon  should 
be  a  party ;  her  coverture  could  not  be  pleaded  either  in  bar  of  the  trust 
resulting  from  the  nature  of  her  estate,  nor  could  it  be  pleaded  in  abate- 
ment of  the  suit,  because  she  was  the  party  in  interest.     It  is  true,  she 
could  not  by  any  act  during  coverture,  create  an  express  trust  for  the  use 
of  others,  but  there  is  no  doubt  she  may  acquire  and  receive  an  estate  in 
either  real  or  personal  property,  in  fee  or  for  life  only.     The  legal  conse- 
quences resulting  from  the  estate  do  not  depend  on  her  consent,  they  arise 
by  operation  of  law.     The  plea  of  coverture  ought  not,  therefore,  to  have 
been  sustained.    Under  the  consent  entered  into  on  the  trial,  and  reported 
by  the  Chancellor,  the  plea  will  be  overruled,  but  she  will  be  treated  as  if 
she  had  answered.     I  have  already  said  that  the  possession  of  James 
Saxon  must  be  referred  to  the  title  of  his  wife.     She  had  a  right  to  the 


I 


5(5  SOUTH    CAROLINA    EQUITY    EEPORTS.  [*75 

possession  of  Sylvia  and  her  children  and  Virgil,  for  life  ;  and  in  Sally  or 
Crces  she  had  a  right  in  common,  with  the  children  of  Edmund  Crad- 
dock, 'and  possibly  also  an  estate  for  life.  He  had  no  right  at  all,  but 
inasmuch  as  his  wife,  under  her  title,  was  entitled  to  the  possession,  he 
was  also  entitled  to  participate  in  the  possession.  His  possession  was  in 
aider  droit,  and  it  follows,  that  he  holds  them  subject  to  all  the  trusts  to 
which  his  wife's  possession  subjected  her.  His  plea  of  the  statute  of  limi- 
tations cannot  therefore  avail  him.  For  in  the  slaves  in  which  his  wife 
had  an  estate,  there  can  be  no  adverse  holding  by  him,  until  the  termina- 
tion of  her  estate  ;  so,  too,  as  to  the  slave  in  which  she  has  an  interest  in 
common,  the  statute  cannot  commence  to  run  until  an  actual  ouster. 

It  is  admitted  that  the  defendants  intended  to  remove  from  the  State, 
and  take  the  said  slaves  with  them.  This  is  such  an  act  as  may  endanger 
the  ultimate  rights  of  the  complainants,  ond  according  to  the  well  estab- 
lished principles  of  this  Court,  they  are  entitled  to  security  from  the 
defendants,  not  to  remove  the  property  out  of  the  State. 

It  is  therefore  ordered  and  decreed  :  that  the  Chancellor's  decree  be 
wholly  reversed,  and  that  the  defendant  James  Saxon,  (and  if  Anne 
^^ ,-,  Saxon  should  survive  him,  then  that  *she  also,)  enter  into  bond  and 
-•  security  to  the  complainants,  before  the  commissioners  in  double 
the  value  of  the  said  slaves,  that  neither  the  said  James  Saxon  and  Anne 
his  wife,  or  either  of  them,  or  any  other  person,  by  their,  or  either  of 
their  consent,  shall  remove  or  attempt  to  remove  the  said  slaves,  or  any 
of  them,  from  and  beyond  the  limits  of  this  State.  The  defendants  must 
pay  the  costs. 

Johnson,  J.,  concurred. 

Harper,  J.,  absent. 


Susannah  Lyles  vs.  Ephraim  Lyles,  Administrator,  and  other  children, 
and  heirs-at-law  of  Aromanus  Lyles,  deceased. 

When  the  credit  of  a  witness  is  impeached,  by  proof  that  he  has  made  declarations 
inconsistent  with  what  he  has  sworn  to :  in  reply  to  such  evidence,  proof  of  his 
declarations  on  other  occasions,  consistent  with  what  he  has  sworn  to,  is  admis- 
sible, (a)  [*77] 

The  credibility  of  witnesses  is  a  question  for  the  jury.   [*79] 

When  the  presiding  Judge  had  expressed  to  the  jury  his  opinion  of  the  evidence,  is 
not  a  ground  for  a  new  trial.   [*80] 

The  object  of  an  issue  at  law,  is  to  satisfy  the  Chancellor  as  to  the  truth  of  certain 
facts,  and  he  may  look  at  the  report  of  the  trial  and  collect  what  may  satisfy  his 
conscience ;  and  if  upon  the  whole,  he  is  satisfied  that  justice  has  been  done,  he 
may  refuse  a  new  trial,  although  evidence  has  been  improperly  rejected  at  law. 

The  value  of  rent  can  only  be  ascertained  by  the  opinion  of  witnesses  acquainted 
with  the  lands;  and  where  the  Commissioner  had  fixed  the  value  of  rent,  and 
adopted  ten  per  cent,  per  annum,  as  a  scale  of  depreciation,  so  that  at  the  expira- 

(a)  See  1  Mod.  282;  4  St.  Tr.  613;  Baker  &  Rowlson  v.  Arnold,  Cain's  Rep.  279; 
Lessees  of  Wright  v.  Dekleyn,  1  Peters  C.  C.  Rep.  199;  2  Hawks  (N.  C  )  183. 


*76]  COLUMBIA,    JANUARY,    1833.  57 

tion  of  ten  years  no  rent  was  charged,  the  Court  beld  it  error,  and  ordered  the 
report  back.  [*84] 

A  co-tenant  has  the  right  of  enjoyment  to  the  extent  of  his  interest,  and  is  not 
liable  for  rent,  unless  he  cultivated  to  a  greater  extent  than  his  interest,  or  unless 
he  has  expelled  his  co-tenant,  or  keeps  her  out  of  possession.  [*8G] 

A  trustee  who  has  neglected  to  make  annual  accounts  will  be  charged  for  negro 
hire,  at  £10  for  full,  and  £5  for  half,  task  hands.  [*87] 

If  one  obtain  possession  by  force  or  fraud,  and  forces  another  out  of  the  adminis- 
tration, he  may  be  held  to  account  at  a  higher  rate ;  the  rule  was  intended  to 
apply  only  to  cases  where  the  party  stands  in  an  amicable  relation  as  trustee, 
guardian,  executor,  &c.  and  is  a  substitute  for  the  regular  annual  account.  [*89] 

The  defendants  being  in  possession  of  negroes  of  which  the  plaintiff  is  entitled  to 
partition,  and  having  employed  them  as  their  own,  and  some  of  the  negroes 
having  been  removed  out  of  the  State,  the  Court  ordered  the  defendants  to  ac- 
count for  the  value  of  negroes,  by  the  appraisement,  with  interest  thereon,  instead 
of  the  negroes  themselves  and  their  hire.  [*90] 

The  defendants  (distributees)  made  individually  liable  for  what  they  had  received 
over  and  above  their  tlistributive  shares.  [*91] 

On  doubtful  questions  of  evidence,  the  Court  will  not  interfere  with  the  decision  qf 
the  Commissioner  and  Chancellor,  [*91] 

Costs  are  so  much  under  the  control  of  the  Chancellor,  that  they  are  not,  of  them- 
selves, regarded  as  the  subject  of  appeal;  it  is  only  where  the  Appeal  Court 
reforms  or  reverses  the  Circuit  decree,  that  it  will  reverse  or  modify  an  order  on 
the  subject  of  costs,  (a)  [*92] 

Bill  for  partition  and  account.  The  questions  made  in  this  case,  and 
the  facts  connected  with  them,  are  fully  set  forth  in  the  following  opinion 
of  the  court. 

Gregg,  for  the  plaintiff. 

Clarke  and  WDowell,  for  the  defendants. 

Johnson,  J.  The  complainant  is  the  widow  of  Col.  Aromanus  Lyles, 
and  the  defendants,  the  Lyles',  and  Mrs.  Moody,  are  his  children,  by  a 
former  marriage.  Col.  Lyles  intermarried  with  the  complainant  in  Feb- 
ruary, 1817,  and  died  in  the  month  of  September  in  the  same  year,  leaving 
no  child. or  children  by  that  marriage.  He  was  possessed  at  the  time  of 
his  death  of  some  real,  and  considerable  personal  estate,  consisting  prin- 
cipally of  negroes,  and  administration  thereof  was  granted  to  the  com- 
plainant and  the  defendant,  Ephraim  Lyles,  jointly ;  but  Ephraim  Lyles 
took  upon  himself,  almost  exclusively,  the  management  of  the  estate  ;  and 
the  object  of  this  bill  was  to  obtain  an  account  of  the  estate,  *and  r*i7>T 
for  partition  amongst  the  parties,  according  to  the  act  of  distribu-  ^ 
tions.  One  of  the  grounds  on  which  the  defendant  resisted  complainant's 
right  to  distribution  was,  that  she  was  not  the  lawful  wife  of  Col.  Lyles, 
but  of  Philip  James,  to  whom  it  was  conceded  she  had  been  beforemar-* 
ried,  and  who,  the  defendants  charged,  was  living  at  the  time  of  her  inter- 
marriage with  Col.  Lyles,  and  an  issue  was  sent  down  to  the  Court  of 
Law,  to  try  the  truth  of  that  allegation. 

On  the  trial  of  the  issue,  a  verdict  was  found  for  the  complainant, 
establishing  the  fact  of  Philip  James's  death,  and  a  motion  was  made 
before  the  Chancellor  on  the  Circuit,  for  a  new  trial,  on  the  grounds : 


(rt)M'Mullan  ?^.  Eldridge.   Harp.   Eq.  Rep.   260;  and  lb.  201,  contra;  Lewis  v. 
Wilson,  1  M'C.  Ch.  Rep.  210  ;  Pace  v.  Burton,  lb.  351. 


58  SOUTH   CAROLINA   EQUITY   REPORTS.  [*77 

first,  that  the  presiding  Judge  at  law,  had  excluded  important  and  com- 
petent evidence ;  secondly,  that  the  verdict  was  against  the  evidence  ; 
thirdly,  because  the  presiding  Judge  expressed  in  his  charge  to  the  jury  a 
decided  opinion,  that  there  was  not  evidence  enough  to  show  that  Philip 
James  was  alive,  at  the  time  of  the  complainant's  intermarriage  with  Col. 
Lyles,  The  Chancellor  overruled  the  motion,  and  decreed  for  the  com- 
plainant on  that  question,  and  directed  an  account  of  the  personal  estate  ; 
and  the  same  grounds  have  been  taken  here,  on  a  motion  to  reverse  the 
Chancellor's  decree,  and  for  a  new  trial. 

1.  The  first  ground  arises  out  of  the  following  state  of  facts.  Henry 
Davis,  a  witness  on  the  part  of  the  defendants,  testified  that  he  had  seen 
Philip  James  in  1817,  near  Leaf  River,  Mississippi,  and  that  he  was  then 
alive  and  well.  Lucy  Farr,  a  witness  examined  by  the  defendants,  stated, 
that  she  had  been  present  when  one  Elizabeth  Brown  had  enquired  of  the 
witness,  Henry  Davis,  if  he  had  recently  seen  Philip  James  :  at  first,  "he 
did  not  appear  to  say  he  had,"  but  after  a  private  interview  between 
them,  Davis  said  he  had  seen  him  in  going  to,  or  returning  from  Pearl 
River.  Elizabeth  Brown  told  the  witness,  Mrs.  Farr,  that  she  was  to  be 
well  paid  by  the  defendant,  Ephraim  Lyles,  if  she  could  find  a  person  that 
would  swear  that  Philip  James  was  alive,  and  that  Davis  would  be  well 
paid  if  he  had  seen,  or  would  swear  that  he  had  seen  him  within  a  certain 
^Ho-i  length  of  time.  This  witness  *did  not  believe  that  Davis  had  ever 
-^  seen  Philip  James,  but  that  he  was  prevailed  on  by  Elizabeth  Brown 
to  swear  that  he  had.  The  defendants  then  offered  Nathan  Vincent,  to 
prove  that  he  had  heard  the  witness  Davis  say,  in  the  latter  part  of  the 
year  1817,  after  his  return  from  the  Mississippi,  that  he  had  seen  Philip 
James.  (The  Chancellor,  it  is  conceded,  was  mistaken  in  supposing  that 
it  was  the  affidavit  of  James  which  was  offered.)  The  presiding  Judge 
rejected  the  evidence  thus  offered,  and  the  question  is,  whether  it  was,  or 
was  not  admissible. 

,  It  does  not  seem  to  admit  of  any  question,  that  the  credit  of  a  witness 
may  be  impeached,  by  proof  that  he  has  made  declarations  inconsistent 
with  the  facts  to  which  he  has  sworn  ;  and  on  that  principle,-  a  letter 
written  by  a  witness  was  admitted  by  Lord  Kenyon,  in  De  Sailley  v. 
Morgan,  2  Esp.  Rep.  691,  to  contradict  what  he  had  sworn  to  on  the 
trial:  and  C.  B.  Gilbert  is  of  opinion  that  in  reply  to  such  evidence, 
proof  of  the  declarations  of  the  witness,  on  other  occasions,  consistent 
with  what  he  had  testified,  is  admissible  to  show  he  is  consistent  with 
himself  (See  Gilbert's  Ev.  135.)  Judge  Buller  is  clearly  of  opinion  that 
it  is  not  admissible,  on  the  examination  in  chief,  to  support  an  unim- 
peached  witness,  and  doubts  whether  it  is  admissible  in  reply.  Buller  N". 
**.  294  ;  and  this  opinion  is  mentioned  by  Mr.  Starkie,  in  his  treatise  on 
Evidence,  (Yol.  1,  part  2,  page  148-9.) 

My  own  mind  inclines  very  much  to  the  opinion  expressed  by  the  Chief 
Baron.  _  The  only  reason  urged  against  it  is,  that  proof  of  inconsistent 
declarations  made  by  a  witness  does  not  add  any  thing  to  his  credit,  and 
only  tends  to  lessen  the  confidence  in  his  credit  or  memory,  and  what  he 
has  asserted  is  not  entitled  to  more  credit,  than  what  he  has  sworn.  But 
it  does  not  follow  necessarily,  that  the  witness  who  has  testified  to  the 
inconsistent  declarations,  has  told  the  truth,  or  that  he  may  not  be  mis- 
taken.    For  example— suppose  that  the  inconsistent  declarations  are 


*78]  COLUMBIA,    JANUARY,    1833.  59 

proved  by  one  witness  only,  and  that  twenty  others  testify,  that  in  the 
same  day,  and  at  other  times  and  phices,  and  under  every  variety  of  cir- 
cumstances, they  had  heard  him  make  declarations  consistent  with  what 
he  had  sworn — would  not  that  raise  a  well  founded  doubt,  whether*  r^^Q 
the  witness  who  proved  the  inconsistent  declarations  had  sworn  the  u  '" 
truth  or  was  mistaken  ?  These  circumstances  would  certainly  change  the 
character  of  the  issue,  by  involving  the  credibility  of  the  last,  as  well  as 
the  first  witness,  and  for  that  reason  I  incline  to  think  the  evidence  ought 
to  have  been  admitted. 

2.  Philip  James  married  the  complainant  about  the  year  1785,  and  in 
a  few  years  after,  abandoned  her  and  went  away.  Some  time  after,  it  was 
reported  and  universally  credited,  that  he  was  dead,  and  about  1800  or 
1801  the  complainant  was  married  to  Joseph  Kennerly,  a  worthy  and 
very  respectable  man.  He  died  about  1808;  and  shortly  after,  she  was 
again  married  to  Cullen  Fennel,  who  died  about  two  years  after ;  and  last 
of  all  she  intermarried  with  Col.  Lyles  in  1817  ;  and  during  all  this  time, 
amongst  their  acquaintances  here,  no  one  doubted  the  rumor  of  Philip 
James's  death  was  true.  His  mother,  Elizabeth  James,  who  was  exam- 
ined on  the  part  of  the  complainants,  states,  that  after  he  abandoned  the 
complainant,  and  before  1790,  he  had  married  another  wife  ;  and  she  saw 
him  for  the  last  time  about  that  period.  In  1812  she  (the  witness) 
received  a  letter  from  his  last  wife,  in  which  she  stated  that  he  died  in 
Tennessee  two  or  three  years  before,  and  the  truth  of  it  was  believed  by 
all  his  friends.  The  only  doubt  as  to  the  death  of  Philip  James,  arises 
out  of  the  evidence  of  two  witnesses  examined  for  the  defendants.  Henry 
Davis,  the  witness  before  spoken  of,  who  states  that  he  had  seen  him  alive 
and  well  near  Leaf  River,  in  Mississippi,  in  1817  ;  and  James  Vessels, 
who  testified  that  he  had  seen  him  on  the  Tombigby,  in  1818,  and  that  he 
saw  his  son  in  1817  or  '18,  who  told  him  that  he  was  still  alive.  ■ 

A  great  number  of  witnesses  (say  fifty  or  more)  have  been  examined  on 
both  sides,  as  to  the  credit  of  these  two  witnesses,  who  are  now  both 
aged  men.  Those  who  speak  of  Henry  Davis,  generally  agree,  that  the 
most  implicit  confidence  ought  not  to  be  placed  in  what  he  would  say  in 
ordinary  conversation — to  use  the  language  of  the  witnesses,  "he  is  now 
as  he  always  has  been,  given  to  romancing. "  As  many  as  fourteen,  per- 
haps more,  think  he  is  not  entitled  to  credit  on  his  oath  ;  and  on  the 
other  hand,  perhaps  as  many  think  him  *worthy  of  belief.  Taken  r^gQ 
then  the  most  favorable  view,  the  credit  of  this  witness  is  extremely 
equivocal.  He  is  precisely  that  sort  of  witness  that  one  would  be  dis- 
posed to  credit  or  not,  as  his  evidence  might  be  favored  by  other  cir- 
cumstances of  the  case  ;  and  when  opposed  by  the  presumption  arising 
from  the  evidence  of  Elizabeth  James,  and  the  facts  stated  by  Lucy  Farr, 
whose  credit  is  unimpeached,  it  is  utterly  unworthy  of  credit.  ^ 

The  credit  of  James  Vessels  is  still  more  exceptionable.  The  late  Mr. 
Solicitor  Starke  testified,  that  he  knew  him  a  soldier  in  the  revolutionary 
war  when  he  was  too  young  to  have  acquired  a  character,  but  that  imme- 
diately after  he  became  notorious  for  the  want  of  truth.  In  1788  he  was 
committed  for  horse-stealing,  at  Ninety-six,  and  pardoned,  and  on  his 
cross-examination  on  this  trial  denied  the  fact.  He  resided  at  the  time  of 
his  examination  in  Georgia,  and  several  persons  who  then  (in  1826)  resi- 
ded in  his  neighborhood,  testified  that  his  character  was  infamous ;  and 


60  SOUTH   CAROLINA    EQUITY    REPORTS.  [*80 

on  the  other  hand  there  were  found  amongst  his  general  acquaintances 
who  had  formerly  known  him,  very  respectable  men,  who  testified  their 
belief  that  he  was  worthy  of  credit. 

It  would  be  uncharitable  to  conclude  that  every  one  who  is  suspected, 
is  unworthy  of  credit ;  but  I  have  always  remarked,  that  there  was  very 
great  difficulty  in  procuring  evidence  to  assail  the  character  of  a  witness, 
and  unusually  rare  that  a  whole  community  should  concur  in  denouncing 
him.  The  more  indulgent  feelings  of  some,  the  partialities  of  others,  and 
the  great  disinclination  of  all,  to  place  a  fellow-creature  under  the  ban  of 
public  opinion,  unless  he  is  utterly  lost  to  all  sense  of  truth  and  honesty, 
operate  powerfully  in  his  favor.  It  is  not  often  that  we  find  such  a 
weight  of  evidence  against  the  credibility  of  witnesses,  as  exists  here. 
The  Jury  were,  therefore,  well  warranted  in  discrediting  them  alto- 
gether. 

3.  No  instance  has  ever  occurred  in  this  Court,  in  which  a  new  trial 
has  been  granted  on  the  naked  ground,  that  the  presiding  Judge  had 
expressed  to  the  jury,  his  own  opinion  as  to  the  truth  of  the  facts.  On 
the  contrary,  it  has  lieen  said  again  and  again,  that  it  is  his  duty  to  aid 
the  Jury  with  his  learning  and  experience  in  arriving  at  a  correct 
^r,-i  -1  *conclusion.  There  is,  I  believe,  scarcely  a  considerate  member  of 
-'  the  profession,  who  does  not  concede  that  public  justice  is  promo- 
ted by  it.  Every  one  of  any  experience  must  have  remarked  with  what 
difficulty  an  inexperienced  jury  arrive  at  conclusions,  in  cases  depending 
on  contradictory  and  complicated  evidence ;  and  how  uncertain  the 
result,  unless  the  Court  in  a  greater  or  less  degree,  share  the  responsi- 
bility and  assist  them  in  their  conclusions;  and  notwithstanding  the 
improper  exercise  of  this  practice  might  innovate  on  the  trial  by  the  juiy, 
my  own  experience  satisfies  me,  that  the  occasional  omission  on  the  part 
of  the  Judge  to  discharge  this  duty,  is  even  more  productive  of  a  much 
greater  evil.  There  is  then  nothing  in  this  ground. 
.  Having  thus  disposed  of  the  grounds  of  the  motion  for  a  new  trial  on 
the  issue  at  law,  it  remains  to  determine  what  order  the  Court  will  make 
upon  it.  The  rule  at  law  very  clearly  is  that  a  new  trial  ought  to  be 
granted,  when  the  Court  has  rejected  competent  evidence  ;  and  from  the . 
view  which  I  have  taken  of  the  matter,  it  must  be  conceded  that  the  evi- 
dence of  Nathan  Vincent,  tendered  to  prove  declarations  of  Henry  Davis, 
consistent  with  what  he  had  sworn,  ought  to  have  been  admitted.  But 
this  was  an  issue  directed  by  the  Court  of  Chancery.  The  object  of  it, 
was  to  satisfy  the  Chancellor  as  to  the  truth  of  the  fact  whether  Philip 
James  was  or  was  not  alive  at  the  time  of  the  complainant's  intermarriage 
with  Col.  Lyles.  The  verdict  of  the  jury  is  the  result  of  their  opinion 
upon  that  question.  The  opinion  of  the  Law  Judge  is  of  great  con- 
sideration to  the  Chancellor.  In  this  case  he  has  not,  as  is  usual, 
formally  reported  it  to  the  Chancery,  but  one  of  the  complaints  made  by 
the  appellant,  is,  that  he  expressed  his  opinion  too  decidedly,  and  we  are 
m  no  doubt  as  to  the  opinion  of  both  judge  and  jury.  I  think,  too,  upon 
a  dispassionate  review  of  the  facts  as  they  are  presented  to  us  here,  we 
should,  without  hesitation,  arrive  at  the  same  conclusion.  The  question 
then  is  whether  the  Court  will  order  a  new  trial,  on  the  ground  of  the 
rejection  of  the  evidence  of  Nathan  Vincent. 


*81]  COLUMBIA,    JANUARY,    1533.  61 

As  before  remarked,  the  object  of  directing  an  issue  at  *law,  is  to 
inform  the  conscience  of  the  Chancellor ;  and  the  authorities  "-0110-  ^ 
rally  agree  that  he  may,  in  his  discretion,  grant  or  refuse  a  new  trial  on 
account  of  the  rejection  or  admission  of  proper  or  improper  evidence  on 
the  trial  at  law.  In  Pemberton  v.  Pemberton,  11  Yes.  52,  the  Ld  Chan- 
cellor Eldon  says,  he  may  look  not  only  at  the  report  of  the  trial  at  law, 
but  at  the  record  of  the  suit  in  equity,  and  may  collect  what  may  satisfy 
his  conscience  ;  and  if  upon  the  whole,  he  is  satisfied  that  justice  has  been 
done,  though  he  may  think  some  evidence  was  improperly  rejected  at  law, 
he  is  at  liberty  to  refuse  a  new  trial.  In  the  case  of  The  Warden  and 
minor  Cannons  of  St.  Paul's,  London  v.  Morris,  9  Ves.  169,  the  same 
learned  Chancellor  asks  the  question — "  Is  the  Court  necessarily  to  grant 
a  new  trial,  if  material  evidence  was  rejected  ?  Or  is  it  not  at  liberty, 
supposing  it  material,  to  consider  in  what  degree  it  is  so  ;  and  whether  its 
materiality  is  such  that  because  it  was  rejected,  a  new  trial  must  be  granted, 
even  if  the  conscience  of  the  Court  is  satisfied  that  the  conclusion  is 
right  ?"  And  he  answers,  "In  all  times,  this  Court  in  such  a  case  as  tliis 
has  exercised  its  discretion  upon  the  whole  case."  He  then  enters  into  a 
consideration  of  the  question,  whether  the  excluded  evidence  would  or 
would  not  have  produced  a  different  result,  and  a  new  trial  was  refused, 
on  account  of  the  difficulties  with  which  the  case  was  surrounded  in 
making  the  necessary  proofs.  In  Hampson  v.  Hampson,  3  Yes.  & 
Beame,  44,  the  case  is  put  directly  upon  the  question  whether  the  ex- 
cluded evidence  would  have  produced  a  different  result,  and  the  Chancel- 
lor being  of  opinion  that  it  ought  not,  refused  a  new  trial. 

The  infamy  of  the  character  of  James  Yessels,  is  such  as  to  justify  the 
Court  in  putting  his  evidence  entirely  out  of  view,  and  I  confess  that  in 
my  estimation,  Henry  Davis  is  not  entitled  to  much  more  consideration. 
His  character  at  best  is  equivocal,  and  when  we  take  into  consideration 
the  circumstances  stated  by  Lucy  Farr,  tending  very  strongly  to  show, 
and  from  which  she  herself  had  drawn  the  conclusion,  that  he  had  been 
suborned  by  Elizabeth  Brown,  I  am  constrained  to  say,  that  in  ray  judg- 
ment, his  evidence  would  *have  been  but  little  strengthened  by  the  ^-^oq 
questionable  support  it  would  have  derived  from  the  evidence  of  L 
Nathan  Yincent.  Philip  James  had  not  been  heard  of  in  this  country 
for  near  forty  years  before  the  intermarriage  of  the  complainant  with 
Col.  Lyles — the  defendants  allege  that  he  was  then  living,  and  it  was  in- 
cumbent on  them  to  prove  it.  The  only  evidence  they  offer  of  it,  is  of 
two  witnesses,  whose  general  character  and  credibility  is  at  best  doubtful, 
and  that  is  opposed  by  the  evidence  of  Philip  James's  mother ;  and  it  is 
very  extraordinary  if  Philip  James  was  still  alive  in  1817  or  '18,  that 
some  one  witness  of  unimpeachable  veracity  could  not  in  the  course  of 
ten  years'  litigation,  have  been  procured  to  prove  it.  The  verdict  of  the 
jury  was  founded  on  a  belief  of  what  these  witnesses  testified.  The  Judge 
who  presided  at  the  trial  of  the  issue  at  law,  took  the  lead  in  it,  and  the 
Chancellor  has  acquiesced,  I  do  not  think  therefore,  that  the  evidence 
of  Nathan  Yincent,  which  we  must  assume  was  improperly  excluded,  can 
vary  the  conclusion  at  which  this  Court  would  have  arrived.  The  motioa 
for  new  trial  must  therefore  be  refused. 

On  the  part  of  the  complainant,  eleven  different  grounds  have  been 
taken  to  reverse  the  decree  of  the  Chancellor  in  relation  to  the  matters  of 


g2  SOUTH   CAROLINA   EQUITY   REPORTS.  [*83 

account  between  the  parties ;  but  before  I  enter  upon  the  consideration 
of  these,  it  will  be  necessary  to  take  a  general  view  of  the  transactions 
connected  with  the  estate.  The  complainant  was,  herself,  possessed  of 
a  considerable  estate,  and  shortly  before  her  marriage  with  Col.  Lyles, 
she  settled  it  on  her  daughter  and  only  child,  as  stated  in  the  answer  of 
Ephraim  Lyles,  with  the  knowledge  and  consent  of  Col.  Lyles,  and  upon 
an  understanding  that  the  children  of  each  were  to  have  their  respective 
estates,  no  children  of  that  marriage  being  anticipated,  being  both  old. 
Before  or  about  the  time  of  their  marriage,  Col.  Lyles  executed  a  writing 
in  the  form  of  a  deed,  purporting  to  be  a  marriage  contract,  in  which  he 
disclaims  and  renounces  all  interest  in  her  property  or  estate,  and  re- 
serves the  whole  of  his  own  for  his  children  by  a  former  marriage.  It  was 
signed,  however,  only  by  Col.  Lyles,  nor  was  there  any  trustee  to  take,  or 
other  third  person  named  in  it ;  and  by  a  decree  of  the  Court  of  Appeals 
in  December  Term,  1824,  it  was  held  that  this  deed  was  void.  (Harper's 
^jj.-i  Eq.  Rep.  *295.)  Upon  administration  being  granted,  Ephraim  Lyles 
-J  possessed  himself  of  the  principal  part  of  the  personal  estate,  and 
took  upon  himself  to  determine  that  this  paper  was  valid  as  a  mar- 
riage contract,  and  excluded  the  complainant  from  any  participation  in 
the  estate ;  and  he  therefore  made  distribution  of  it  between  himself  and 
the  other  defendants,  the  children  of  Col.  Lyles.  Long  before  the  inter- 
marriage of  Col.  Lyles  with  the  complainant,  he  had  made  a  pai'ol  parti- 
tion of  all  his  real  estate,  amongst  his  three  sons,  James,  Aromanus,  and 
Thomas.  He  put  James  and  Aromanus  into  the  immediate  possession 
of  the  portions  allotted  to  them  reserving  to  himself  a  life  estate  in  that 
allotted  to  Thomas,  consisting  about  320  acres,  on  which  he  continued  to 
reside  up  to  the  time  of  his  death.  The  complainant  claimed  partition  of 
the  whole,  but  in  the  judgment  before  referred  to,  it  was  determined  that 
James  and  Aromanus  were  entitled  to  hold  under  their  possession,  and 
that  Thomas  was  not,  on  account  of  the  absence  of  a  corresponding  pos- 
session. Ephraim  Lyles  says  in  his  answer,  that  on  the  complainant's 
going  on  a  visit  to  Lexington,  he  placed  a  tenant  in  the  house,  for  the  pur- 
pose of  keeping  possession  of  it,  but  he  does  not  believe  that  any  violence 
was  offered  to  the  complainant  by  the  tenant.  This  is  an  answer  to  an 
allegation  in  the  complainant's  bill,  that  the  defendants  turned  her  out  by 
violence.  The  Commissioner  reports,  that  there  were  about  150  acres  of  the 
land  cleared  and  inclosed,  and  it  is  inferable  from  the  circumstances,  that 
the  other  defendants  acquiesced  in  the  claim  of  Thomas  Lyles,  and  he 
took  possession  of  it,  and  cultivated  small  portions  of  it  from  year  to 
year.  It  does  not  appear  from  any  thing  before  the  Court,  under  what 
circumstances  Thomas  Lyles  entered,  or  whether  he  had  any  agency  in 
putting  in  the  tenant,  or  in  any  instance  denied  the  complainant's  right, 
or  obstructed  her  entry. 

In  this  report,  the  Commissioner  has  fixed  the  annual  rent  of  the  better 
quality  of  land,  what  he  calls  cotton  land,  at  two  dollars  per  acre,  and  the 
inferior  quality  at  one  dollar  per  acre  ;  and  establishing  ten  per  cent,  per 
annum,  as  the  scale  of  the  deterioration  of  the  land,  he  deducts  that 
amount  annually,  so  that  no  rent  is  charged  after  the  expiration  of  ten 
*85]  'i'^^'^^-  The  Chancellor  has  so  far  corrected  the  report,  as  to  *direct 
that  something  shall  be  allowed,  even  after  the  expiration  of  that 
period. 


*8-3]  COLUMBIA,    JANUARY,    1833.  63 

The  first  ground  of  the  complainant's  appeal,  complains  that  this 
is  error,  and  insists  that  the  complainant  is  entitled  to  full  rent  for  the 
whole  period. 

The  rule  adopted  by  the  Commissioner  and  considered  as  merely  arbi- 
trary, is  cei'tainly  not  sustained  by  any  principle.  The  soil  of  this  country 
varies  from  the  extremes  of  fertility,  to  the  most  indomitable  sterility,  so 
that  the  rule  in  one  case  is  wholly  inapplicable  to  another,  unless  the 
quantity  of  the  land,  the  mode  of  culture,  and  the  crops  raised,  corres- 
pond iu  every  particular — in  every  case,  therefore,  the  value  of  rent  can 
only  be  ascertained  by  the  opinion  of  witnesses  competent  to  judge,  and 
acquainted  with  the  land.  In  this  country  inferior  land  depreciates 
rapidly,  under  the  ordinary,  indeed  the  almost  universal,  mode  of  culture 
— even  the  provident  planter  does  not  so  husband  his  land  as  to  prevent 
deterioration,  and  a  reasonable  abatement  ought  to  be  made  on  that  ac- 
count, but  no  general  rule  can  meet  the  case,  and  the  decreased  value  must 
be  ascertained  in  the  manner  mentioned.  Land  rent  must  be  worth  some- 
thing, as  long  as  it  is  fit  for  cultivation.  This  matter  must  therefore  be 
referred  back  to  the  Commissioner. 

In  connection  with  this  subject,  the  questions  are  raised,  who  is  liable 
for  rent  ?     And  to  what  extent  is  it  due  ? 

Independently  of  the  concession  made  in  the  answer  of  Ephraim  Lyies, 
that  in  the  absence  of  the  complainant  he  had  put  a  tenant  into  the  house 
to  keep  possession  of  it,  there  is  nothing  to  show  the  fact,  that  the  com- 
plainant was  ousted  of  the  possession.  Houston  Goree,  the  only  witness 
who  speaks  on  this  subject,  says  that  he  saw  one  David  Dunkin  living  in 
the  house,  shortly  after  the  death  of  Col.  Lyles,  who  appeared  to  be  the 
proprietor  of  it  for  the  time,  and  thinks  he  heard  him  say,  that  he  was  put 
there  to  keep  the  complainant  out.  But  it  does  not  appear  by  whom  he 
was  put  in  possession,  or  who  authorized  him  to  prevent  her  entering. 
The  answer  of  Ephraim  Lyles  would  lead  to  the  conclusion,  that  he  did 
it ;  but  he  claimed  no  interest  in  it.  The  defendants  are  understood  to 
have  *acquiesced  in  the  claim  of  Thomas  Lyles,  and  he  is  the  only  p^-g^ 
person  amongst  the  defendants  who  has  had  the  use  and  enjoyment  '- 
of  any  part,  and  it  is  not  probable  that  Ephraim  Lyles  would  take  upon 
himself  to  incur  the  responsibility  of  turning  out  the  complainant  and  put- 
ting in  Thomas  Lyles,  v/ho  was  as  competent  to  act,  and  probably  under- 
stood his  rights  as  well. 

If  Ephraim  Lyles  ousted  the  complainant  of  the  possession,  he  is  liable 
for  the  annual  rents  to  the  extent  of  the  complainant's  interest,  whether 
the  plantation  was  cultivated  in  whole  or  in  part,  or  not  at  all,  for  to  the 
extent  of  her  interest,  she  might  have  used  it  herself,  or  leased  it  to 
another ;  and  if  Thomas  Lyles  himself  prevented  the  entry  of  the  com- 
plainant, or  participated  in  the  act  of  Ephraim  Lyles,  in  ousting  her  of 
the  possession,  he  is  liable  to  the  same  extent :  but  if  on  the  contrary, 
Thomas  Lyles  neither  expelled,  nor  kept  the  complainant  out,  by  any  act 
amounting  to  force,  he  is  liable  only  to  the  extent  to  which  he  cultivated 
the  plantation,  and  not  even  in  that  case,  to  the  complainant,  unless  he 
cultivated  it  to  an  extent  greater  than  the  interest  of  himself  and  the  other 
defendants.  As  a  co-tenant,  he  had  the  right  to  enter  and  use  it  to  the 
extent  of  his  own  interest,  and  with  the  consent  of  the  other  dclendants,  to 
the  extent  of  their  interest  also.     This  did  the  complainant  no  wrong,  it 


64  SOUTH    CAROLINA    EQUITY    REPORTS.  [*86 

the  one  third  part  to  which  she  was  entitled  was  left  unoccupied,  and  the 
possession  was  not  withheld  from  her.  This  has  been  repeatedly  ruled 
by  this  Court.  The  case  of  Volentine  v.  Johnson,  ante,  49,  during  this 
Term,  is  an  instance. 

The  questions  of  fact  are  involved  in  so  much  uncertainty  that  I  am 
unable  to  form  any  satisfactory  judgment  in  relation  to  them.  The  evi- 
dence on  this  part  of  the  case  appears  to  have  been  taken  as  long  ago  as 
1822,  and  it  is  apparent  that  about  fourteen  pages  are  wanting,  and  it  is 
not  improbable  that  the  doubt  in  which  it  is  involved  arises  out  of  that 
cause.  These  questions  must  therefore  go  back  to  be  examined  and 
reported  on  by  the  Commissioner,  in  connection  with  the  amount  of 
rent.  (2  Eq.  Rep.  499;  4  Eq.  Rep.  270.) 
,::QHn       In  the  old  cases,  some  of  which  will  be  found  in  Equity  *Reports, 

'-J  by  Chancellor  De  Saussure,  negro  hire  was  rated  at  £10  for  full 
task  hands,  and  £5  for  half  hands.  In  the  prosperous  times  which  suc- 
ceeded the  late  war,  and  when  produce  sold  for  great  price,  the  Courts 
departed  from  this  rule,  and  much  higher  prices  were  allowed  in  some 
eases,  but  in  the  case  of  Moorman  v.  Foote  and  others,  and  Myers  v 
Myers,  decided  since  the  present  organization  of  the  Court,  the  rule  was 
resumed  upon  much  consideration  ;  and  my  own  experience  and  observa- 
tion is,  that  it  is  as  much  as  in  general  they  are  worth  ;  and  I  propose  to 
subjoin  to  this  decree,  an  estimate  upon  which  it  is  founded,  (a)  It  never 
was  intended  to  apply,  in  those  cases  where  the  party  accountable,  came 
to  the  possession  and  use  of  the  slaves  by  force  or  fraud,  but  when  he  stood 
in  an  amicable  relation,  as  trustee,  guardian,  or  executor  or  administrator, 
bailee,  &c.,  and  is  a  substitute  for  the  regular  annual  account  which  he 
ought  to  make.  The  decree  of  the  Circuit  Court  has  allowed  the  com- 
plainant for  a  part  of  the  time  $80,  and  for  the  remainder  $70,  for  full 
task  male  hands ;  and  $60  for  a  part  of  the  time,  and  $50  for  the  re- 
mainder, for  full  task  females ;  and  in  that  proportion  for  inferior  hands, 
the  young  and  the  old.  In  the  grounds  of  appeal,  the  complainant  insists 
that  according  to  the  evidence,  even  a  greater  sum  than  this  should  have 
been  allowed  ;  and  it  is  very  certain  that  the  ordinary  estimate  of  the  value 
of  negroes's  hire,  sustained  by  innumerable  instances,  and  actually  letting 
;j;gg  j  to  hire,  greatly  exceeds  the  £10  rule,  and  ^occasionally,  the  amount 
-■  claimed  by  the  complainant,  ($85  for  males,  and  $65  for  females) 


(a)  [  The  following  is  the  estimate  referred  to.] 

When  the  case  of  Moorman  v.  Foote  and  others,  was  under  consideration,  I  took 
some  pains  to  correct  my  own  limited  experience  and  observation,  by  inquiries 
amongst  the  most  intelligent  and  successful  planters  of  the  middle  and  up-country, 
as  to  the  value  of  negro  hire;  and  from  the  data  thus  collected,  I  have  made  the 
subjoined  estimate.  The  first  object  of  the  planter,  is  to  raise  a  sufficient  supply  of 
provisions  and  forage  for  family  consumption,  and  no  more.  In  the  middle  and  up- 
country,  the  usual  habit  is  to  clothe  the  negroes  by  the  labor  of  the  females,  at 
times  when  they  can  be  conveniently  dispensed  with  in  the  field ;  and  upon  lands 
of  medium  quality,  two  bags  and  an  half  of  cotton  of  three  hundred  pounds  per  task 
hand,  is  regarded  as  a  good  crop,  taking  a  series  of  years  together,  and  my  own 
experience  is,  that  this  is  a  high  average.  I  have  not  been  able  to  obtain  a  precise 
estimate  of  the  average  price  of  cotton  for  the  last  ten  or  twelve  years,  and  have 
adopted  12^  cents,  as  approximating  it,  and  as  answering  the  purpose  of  illustration. 
Overseer's  wages  is  a  usual  item  of  expense,  and  if  one  is  not  employed,  the  planter 
himself  earns  it  and  is  entitled  to  it.     This  I  have  estimated  at  $10  per  hand— cal- 


*88] 


COLUMBIA,    JANUARY,    1833.  65 


but  the  result  of  the  estimate  which  I  propose  to  make,  will  show  that  the 
hirer  must  lose  largely  at  those  prices.  Possibly  one  who  has  a  planta- 
tion, stock  and  implements  of  husbandry,  and  which  must  remain  unem- 
ployed for  the  want  of  hands,  unless  obtained  by  these  means,  may  find 
his  account  in  paying  these  prices,  but  pursued  as  a  system  it  must  prove 
ruinous.  The  counsel  for  the  complainant  has  however  submitted,  whe- 
ther this  is  a  case  for  the  application  of  the  rule,  and  if  the  Court  should 
be  against  him  on  that  question,*  he  asks  that  the  value  of  the  per-  r^.nn 
sonal  estate  and  interest  upon  it,  should  be  substituted  in  the  place  •- 
of  the  account  for  slave  hire. 

The  complainant  charges  in  her  bill,  that  she  was  forced  out  of  the  ad- 
ministration by  the  defendants.  But  this  is  not  conceded  in  the  answers, 
nor  is  there  any  proof  pointed  out  which  warrants  such  a  conclusion. 
The  witness  Houston  Goree,  says  that  he  saw  "Ephraim  Lyles  and  Mrs. 
Lyles  jerk  out  of  the  hands  of  the  complainant  with  violence,  some  article 
of  clothing  made  up  or  not,"  but  I  cannot  perceive  how  any  unfairness  in 
respect  to  the  administration  of  the  estate  can  be  inferred  from  this  one 
circumstance.  The  impression  which  it  has  made  upon  my  mind,  is  that 
it  was  a  controversy  between  two  old  women  about  some  article  of  cloth- 
ing, probably  a  relict,  in  which  Ephraim  Lyles  suffered  himself  to  parti- 
cipate, and  no  more.  It  is  no  disparagement  to  the  complainant  to  sup- 
pose that  Ephraim  Lyles,  as  a  man,  was  more  competent  than  herself  to 
administer  the  estate ;  and  nothing  unfavorable  to  him  can  be  inferred 
from  the  circumstances  that  he  took  upon  himself  the  burthen  of  the  ad- 
ministration. It  is  precisely  what  might  have  been  expected,  and  what 
occurs  in  almost  every  administration  where  a  man  and  a  woman  arc 

culating  the  wages  of  an  overseer  of  30  hands  at  $300.     The  account  then  stands 
thus: 

DR. 
The  planter,  for  2^  bags  cotton,  of  SOOlbs,  each,  at  12i  cents,     ,         .        $93  75 

CR. 
Overseer's  wages  per  hand,     .         .         .         .         .         .         .         $10  00 

Land  rent,  say  12  acres,  per  hand,  at  $1  50,      .         .         .         .       18  00 

Horse  hire,  per  hand,     ........  5  00 

Wear  and  tear  of  working  tools  and  other  implements  of 

husbandi*y,  machinery,  &c.,    .         .         .         .         .         .         .         5  00 

1  blanket,  $2  ;  1  pair  shoes,iSl  25, 3  25 

Taxes,  .$-1  ;  physician's  bill,  $2, 3  00 

Bagging,  rope  and  twine,  §>1  per  bale,   ,         .         .         .         .         .     2  50 

Freight,  per  bale,  $1.         ...  .....         2  50 

Commissions  on  selling  cotton,  2i  cents  pr.  cwt.,    .         .         .         .     2  29       • 

$51  54 

.$12  21 
S»2  80 


Negro  hire,  £10=$42  86 

Against  the  planter,  ""^ 

Salt  and  other  little  articles  of  expense,  which  force  themselves  upon  the  humane 
master,  for  which  no  certain  estimate  can  be  made,  are  intentionally  omittod.  and 
in  every  instance  I  have  intended  to  put  the  other  expenses,  founded  on  calculation, 
something  below  their  real  estimate.  If  there  is  any  thing  omitted,  suhsc,,uent 
experience  will  bring  it  to  light;  the  intention  of  these  remarks  being  to  call  the 
attention  of  the  gentlemen  of  the  law  to  the  subject,  with  a  view  to  establish  a 
settled  rule,  if  that  already  established  should  prove  to  be  incorrect. 
YoL.  1—5 


66  SOUTH   CAROLINA   EQUITY   REPORTS.  [*89 

joined  ia  the  administration.  Divested  of  the  inferences  which  are  at- 
tempted to  be  drawn  from  these  circumstances,  the  case  is  precisely  that 
contemplated  by  the  rule,  so  far  as  E])hraim  Lyles  is  concerned.  It  is 
the  case  of  an  administrator  in  possession  and  liable  to  account.  But  the 
case  is  still  stronger.  The  evidence  abundantly  showSj'that  there  was 
an  understanding  between  Col.  Lyles  and  the  complainant,  at  the  time  of 
their  intermarriage,  that  their  estates  were  to  remain  and  be  kept  sepa- 
rate, and  that  the  children  of  each  were  to  inherit  their  respective  estates 
at  their  death.  The  complainant  was  provident  enough  to  secure  her 
own  estate,  and  the  paper  executed  by  Col.  Lyles  was  evidently  intended 
to  secure  his  also.  Philip  James  the  complainant's  first  husband,  was 
confessedly  alive  down  to  1809  or  '10,  after  hermarriage  with  both.  Ken- 
^Qr.-i  nerly  and  Fennel,  and  his  *deatli  even  then,  is  only  proved  by  infor- 
-■  mation  received  by  his  mother,  who  resided  in  North  Carolina,  and 
who  was  probably  wholly  unknown  to  the  defendants,  and  they  were  pro- 
bably also  ignorant  of  any  clue  which  would  lead  to  certainty.  The 
result  has  shown,  that  Ephraim  Lyles  acted  indiscreetly  in  making  distribu- 
tion of  the  estate,  before  the  rights  of  the  parties  under  the  deed  executed 
by  Col.  Lyles,  and  the  fact  of  the  death  of  Philip  James,  were  judicially 
ascertained  ;  and  considering  the  doubt  and  uncertainty  in  which  these 
matters  were  involved,  it  would  have  been  equally  unwise  in  him  to  have 
assumed  the  responsibility  of  letting  the  complainant  into  the  partition. 
Provident  counsels  would  have  suggested  the  propriety  of  postponing  the 
partition,  until  these  matters  were  finally  adjusted,  and  if  that  had  been 
done,  the  situation  of  Ephraim  Lyles  would  have  been  precisely  that  con- 
templated by  the  rule  It  does  the  complainant  no  wrong,  that  she  should 
be  put  precisely  in  the  situation  that  she  would  have  been,  if  the  adminis- 
tration had  been  conducted  in  the  most  proper  and  regular  manner,  and 
for  these  reasons  I  am  satisfied,  that  the  case  is  one  to  which  the  rule  is 
strictly  applicable. 

An  actual  partition  of  the  property  of  which  Col.  Lyles  died  possessed, 
with  an  account  of  the  rents  issues  and  profits  which  it  would  have  pro- 
duced if  prudently  managed,  is  the  strict  measure  of  the  complainant's 
rights.  But  the  defendants  have  made  the  personal  estate  their  own  by 
the  partition  and  use,  and  they  have  no  right  to  complain,  if  they  are 
made  to  account  for  the  value  at  the  time  they  received  it,  with  the  in- 
terest thereon,  as  a  substitute  for  the  hire  of  the  negroes.  The  com- 
plainant has  thought  proper  to  accept  the  value  and  interest,  as  a  sub- 
stitute for  the  property,  and  the  issues  and  profits,  and  it  does  not  appear 
to  me,  that  the  Court  can  refuse  to  allow  it.  In  this  case  there  is  an  ad- 
ditional reason — two  of  the  defendants,  it  is  represented,  to  have  removed 
to  Mississppi,  or  some  other  of  the  western  States  with  their  negroes,  so 
that  the  Court  has  no  means  of  making  actual  partition  of  these.  Some 
*9ll  ^^  ^^^®  negroes  are  said  to  have  since  died,  and  others  may  *have 
been  disposed  of  by  the  parties,  and  with  respect  to  these,  an  ac- 
count would  be  indispensable.  It  is  therefore  not  only  equally  equitable 
and  just,  but  infinitely  more  convenient.  The  inventory  and  appraise- 
ment of  the  personal  estate,  as  far  as  that  extends,  must  be  taken  as  evi- 
dence of  value,  as  more  likely  to  furnish  the  true  value  than  any  that  could 
be  obtained  at  so  distant  a  day.  If  there  was  property  not  included  in 
these,  other  evidence  must  of  necessity,  be  furnished. 


*91]  COLUMBIA,    JANUARY,    1833.  67 

Primarily,  Epliraira  Lyles,  the  administrator,  is  unquestionably  lialjle  to 
the  whole  amount  of  the  complainant's  rights  ;  but  it  is  claimed  for  the 
complainant,  that  the  other  defendants  should  be  decreed  to  be  jointly 
liable  with  him  for  the  whole,  on  the  ground  that  there  was  a  conspiracy 
amongst  them,  to  defraud  the  complainant.  I  am  unable  to  perceive  in 
the  circumstances  of  this  case,  any  feature  that  does  not  ordinarily  occur 
in  the  mal-administration  of  an  estate.  As  administrator  in  possession, 
Ephraim  Lyles  had  at  that  time  (before  the  act  of  1824),  the  absolute 
power  of  disposition ;  and  there  is  no  principle  in  law  or  equity  which 
would  make  any  one  else  liable  for  the  manner  in  which  he  might  dispose 
of  it,  nor  can  I  perceive  how  there  could  be  fraud  in  the  exercise  of  a 
legitimate  right.  This  claim  is  founded  on  the  supposed  insolvency  of 
Ephraim  Lyles.  If  that  be  true,  the  defendants  are  clearly  individually 
liable,  for  what  they  may  have  severally  received  over  and  above  their 
distributive  share  of  the  personal  estate.  They  have  received  that  which 
exequo  et  bono,  belongs  to  the  complainant,  and  upon  clear  principles  of 
equity,  must  account  with  her  for  it. 

The  sixth  and  seventh  grounds  of  the  complainant's  motion,'  complain 
that  the  decree  of  the  Circuit  Court  charges  the  defendant  Ephraim  Lyles, 
with  a  less  quantity  of  cotton  than  came  to  his  hands,  and  that  it  charges 
the  complainant  with  the  value  of  a  small  amount  of  personal  property 
which  she  retained,  claiming  it  as  a  part  of  her  own  estate,  and  as  having 
been  included  in  her  settlement  on  her  daughter. 

"Both  of  these  questions  are  mere  matters   of  evidence,  *and  the  p^Q^, 
Commissioner  and  Chancellor  have  both  arrived  at  the  same  con-  ^ 
elusion.     The  evidence  is,  at  best,  doubtful,  and  this  Court  does  not  feel 
warranted  in  reversing  their  decision. 

The  right  to  order  partition  of  the  land,  was  evidently  a  mere  omission, 
and  will  be  provided  for  in  the  decretal  order.  In  the  progress  of  the 
cause,  it  seems  that  a  survey  was  made  of  the  lands,  and  it  is  alleged  on 
the  part  of  Thomas  Lyles,  that  a  part  of  the  land  included  in  this  survey 
did  not  belong  to  Col.  Lyles  at  the  time  of  his  death,  or  at  any  time 
during  his  coverture  with  the  complainant,  but  to  himself  The  Court 
have  no  means  of  judging  of  the  truth  of  this  allegation,  but  if  there  be 
any  thing  in  it,  the  question  will  necessarily  and  properly  arise  on  the 
return  of  the  writ  of  partition. 

The  decree  of  the  Circuit  Court  directs  that  the  costs  should  be  paid 
out  of  the  estate  ;  and  the  aomplainant  appeals  from  that  part  of  the  de- 
cree, on  the  ground,  that  the  defendants  ought  to  have  been  charged  with 
the  whole  amount  of  costs. 

In  Chancery,  costs  are  regarded  as  discretionary ;  not  as  the  subject  or 
capricious  discretion,  but  as  the  result  of  a  reasonable  and  equitable  de- 
duction, from  all  the  circumstances  of  the  case,  and  are  so  much  under 
the  control  of  the  Circuit  Court,  that  they  are  not  of  themselves  regarded 
as  the  subject  of  appeal ;  and  it  is  only  in  those  cases  where  this  Court 
reverses  or  substantially  reforms  the  decree  of  the  Circuit  Court,  that  it 
assumes  the  authority  to  reverse  an  order  made  on  the  subject  of  costs. 
Here,  the  principles  upon  which  the  Circuit  Court  decree  proceeds,  are 
sustained  throughout,  and  it  is  only  in  their  application,  that  this  decree 
varies  from  it ;  and  on  that  ground,  I  question  very  much  the  propriety 
of  varying  the  order  with  respect  to  costs.     Judging  of  the  case  a  prion, 


68  SOUTH    CAROLINA   EQUITY   REPORTS.  [*92 

this  question  is  not  free  from  difficulty.  The  circumstances  before  stated, 
would  seem  to  have  rendered  it  perilous  for  the  administrator  to  have 
taken  upon  himself  the  responsibility  of  letting  the  complainant  into  a 
^  -.  partition,*  and  without  any  fault  on  his  part,  a  suit  was  almost  in- 
" '^  -I  evitable.  This  state  of  things  arises  out  of  the  misfortunes  of  the 
complainant,  Philip  James's  abandonment  of  her  :  and  notwithstanding  I 
am  strongly  inclined  to  believe  that  the  defendants  have  conducted  this 
litigation  with  rather  more  zeal  and  acrimony  than  became  the  relation  in 
whicli  they  stood  to  her,  I  cannot  see  my  way  so  clearly,  as  to  be  certain 
that  the  Chancellor  was  in  error ;  the  order  with  respect  to  costs,  must 
therefore  stand. 

It  was  urged  in  the  argument,  but  I  do  not  observe  it  stated  in  the 
grounds  of  appeal,  that  the  sureties  to  the  administration  bond,  who  are 
represented  to  be  some  of  the  other  defendants,  should  be  made  liable  for 
any  defalcation  of  Ephraim  Lyles  in  the  event  of  his  insolvency,  but  they 
are  not  charged  in  that  character  in  the  bill,  and  upon  looking  through 
the  whole  proceedings,  it  is  nowhere  stated  who  they  were.  This  would, 
itself,  be  a  sufficient  reason  for  not  making  any  order  with  respect  to 
them.  The  complainant  is  moreover  a  party  to  the  bond,  and  I  can  well 
conceive  that  questions  might  there  arise,  deserving  more  consideration 
and  attention  than  has  been  bestowed  on  them  in  the  argument.  No 
order  will  be  made,  therefore,  on  that  subject. 

It  is  ordered  and  decreed,  that  a  writ  of  partition  do  issue,  to  make 
partition  of  the  lands,  tenements,  and  hereditaments  whereof  the  said  Col. 
Aromanus  Lyles  was  seized  and  possessed  at  the  time  of  his  death, 
between  the  complainant,  his  widow,  and  the  defendants,  his  children, 
agreeably  to  the  Act  of  Assembly  in  such  case  made  and  provided,  and 
that  it  be  referred  to  the  Commissioner  to  ascertain  the  rents  and  profits 
of  the  said  lands,  and  the  person  or  persons  liable  to  account  for  the 
same,  according  to  the  principles  of  this  decree. 

It  is  further  ordered  and  decreed,  that  the  Commissioner  do  state  an 
account  between  the  complainant  and  defendant,  Ephraim  Lyles,  debiting 
him  with  the  value  of  the  personal  estate  which  came  to  his  hands,  to  be 
estimated  at  the  value  stated  in  the  inventory  and  a]ipraisement  of  the 
estate,  filed  in  the  Ordinary's  office  and  exhibited  with  his  answer,  and 
*94''  ^^^.^^"cting  therefrom  what  has  been  *ascertained  to  have  been  paid, 
-■  laid  out  and  expended  in  the  due  course  of  administration.  That 
he  set  down  to  the  credit  of  the  complainant,  joue-third  part  of  the  nett 
balance,  and  deduct  therefrom  the  amount  of  assets  in  the  hands  of  the 
complainant ;  and  that  the  said  defendant  Ephraim  Lyles,  do  pay  to  the 
complainant  the  balance  of  the  said  one-third  part,  with  interest  thereon  • 
from  the  first  day  of  July,  1818. 

It  is  also  further  ordered  and  decreed,  that  the  said  Commissioner  do 
state  an  account  with  each  of  the  other  defendants,  debiting  them  seve- 
rally with  one-seventh  part  of  the  value  of  the  slaves  of  the  intestate, 
stated  in  the  inventory  and  appraisement  aforesaid,  and  in  default  of  pay- 
ment of  the  sum  due  to  the  complainant,  by  the  defendant  Ephraim 
Lyles,  after  notice  of  the  final  order  of  the  Court,  that  the  said  other 
defendants,  John  Lyles,  James  Lyles,  Thomas  Lyles,  Aromanus  Lyles, 
Yulentme  Lyles,  and  William  Moody  and  wife,  do  pay  to  the  complainant 
s'.x-sevenths  of  the  sum  so  as  aforesaid  ascertained  to  be  due  and  owing 


*94]  COLUMBIA,    JANUARY,    1833.  09 

to  her  severally,  in  proportion  to  the  amounts  they  have  respectively 
recovered. 

It  is  further  ordered  and  decreed,  that  the  costs  be  paid,  one-third  part 
thereof  by  the  complainants,  and  the  remaining  two-thirds  by  the  defend- 
ants. 

It  is  also  further  ordered  and  decreed,  that  the  decree  of  the  Circuit 
Court  be  reformed  according  to  the  principles  of  this  decree,  and  that  it 
be  affirmed  so  far  as  it  is  consistent  with  this  decree. 

O'JS'eall,  J.,  concurred. 

Harper,  J.  I  concur,  except  as  to  the  propriety  of  the  Judge's 
expressing  to  the  jury  his  opinion  on  the  facts.  It  is  his  duty  to  arrange 
and  sum  up  the  evidence  ;  to  point  out  to  the  jury  distinctly  the  matters 
of  fact  which  they  have  to  decide,  and  the  evidence  which  bears  on  the 
facts  respectively.  In  doing  this,  it  will  sometimes  unavoidably  happen 
that  his  opinion  on  the  facts  will  be  intimated  to  the  jury.  But  still  it  is 
the  judgment  of  the  country,  and  not  the  judgment  of  the  Court,  on 
matters  of  fact,  which  *the  institution  of  the  trial  by  jury  was  r^q- 
intended  to  secure.  If  a  decided  opinion  be  given  by  the  L 
Judge,  the  jury  are  too  apt  to  rely  on  that,  and  to  throw  the  responsi- 
bility on  him.  The  firm  and  honest  exercise  of  his  own  judgment,  is 
what  every  citizen  who  is  called  upon  to  act  as  a  juror,  owes  to 
his  country — a  duty  which  he  should  be  accustomed  to  perform. 


John  Peay  and  J.  B.  Pickett  v.  John  M.  Barber. 

The  general  rule  is,  that  a  lapsed  legacy  of  chattels  passes  under  a  general  residuary 
bequest,  but  the  rule  does  not  apply  where  the  residuary  bequest  is  of  a  particular 
fund  or  description  of  property,  or  other  certain  resiiluuin.(«)  [*y7] 

Testator,  by  his  will,  bequeathed  to  his  wife  one-half  of  his  negi-oes,  household 
furniture,  stock,  money,  debts,  &c.  ;  and  to  his  sister's  children  (by  name)  "all 
the  rest  of  my  negroes  and  their  increase,"  and  adds  "all  the  rest  of  my  pro- 
perty not  disposed  of,  I  wish  to  be  sold  at  public  sale,"  and  the  proceeds  to  be 
divided  among  the  said  children,  and  "the  rest  of  my  money  on  hand  and  owing, 
I  wish  to  be  disposed  of  in  the  same  manner,"  &c. ;  the  testator's  wife  died  in  his 
lifetime,  so  that  the  legacy  to  her  lapsed:  Held,  that  the  words  "all  the  rest  of 
my  property,"  must  be  understood  as  exclusive  of  the  negroes,  money  and  debts 
due ;  and  as  covering  only  the  household  furniture  stock,  movables  and  chattels 
of  that  class  of  property ;  that  nothing  else  of  the  lapsed  legacy  but  property  of 
this  description  passed  under  the  residuary  bequest,  and  that  the  negroes,  money 
and  debts  due,  descended  to  the  heirs  general.  £*98] 

The  defendant  had  been  appointed,  by  an  order  of  the  Court,  guardian 
to  his  six  minor  children  to  whom  a  legacy  had  liecn  left  by  the  last  will 
and  testament  of  Daniel  Green,  their  uncle.  The  complainants  were 
securities  to  his  guardianship  bond,  and  the  ol>jcct  of  this  bill  was  to 
compel  an  account,  and  to  relieve  the  complainants,  on  account  of  the 
mismanagement  of  the  legacy. 

(r/)  Sinkler  v.  Sinkler,  2  Eq.  Rep.  138;  Sutton  v.  Sharpe,  1  Russ.  14G;  Flcraing 
V.  Burrows,  1  Russ.  276. 


70  SOUTH   CAROLINA    EQUITY    REPORTS.  [*95 

Daniel  Green,  by  his  will,  gives  in  the  first  place,  to  his  wife  Nancy, 
certain  real  estate,  and  then  proceeds  :  "  I  also  give  and  iDequeath  to  my 
wife  Nancy,  as  aforesaid,  one-half  of  all  the  negroes  I  now  possess 
(fourteen  in  number)  (not  including  a  negro  woman,  which  I  have  loaned 
to  my  sister,  Rebecca  Barber,  named  Letty,)  which  said  negroes  she  is  to 
take  at  the  valuation  of  legal  appraisers,  having  her  choice  of  the  negroes 
as  aforesaid,  till  she  may  have  one-half  of  their  whole  valuation." 
Again,  "  I  further  give  to  her,  one-half  of  all  my  stock,  of  every  descrip- 
tion ;  one-half  of  my  household  furniture,  plantation  tools,  and  movable 
property  of  every  sort  and  description,  that  may  be  upon  the  plantation, 
to  be  valued  as  before  mentioned,  and  is  to  have  her  choice  of  property, 
until  she  may  have  one-half  of  the  whole  as  aforesaid.  I  also  allow  her 
one-half  of  the  ready  money  I  may  have  on  hand,  as  well  as  one- 
^„„-|  *half  of  all  that  may  be  owing  to  me,  after  my  just  debts  have 
-'  been  paid  from  the  whole  amount ;  the  whole  of  which  land  and 
money  and  personal  property,  she  has  the  right  of  disposing  of,  as  she 
may  think  meet  and  proper. " 

The  testator  then  gives  certain  specific  legacies  to  sundry  persons,  and 
the  will  then  proceeds,  "  Item,  I  give  and  bequeath  to"  (the  defendant's 
six  minor  children  by  name)  "  all  the  rest  of  my  negroes  with  their 
increase,"  and  prescribes  the  time  and  manner  of  distribution  amongst 
them,  and  then  adds,  "  all  the  rest  of  ray  property  not  disposed  of,  I  wish 
to  be  sold  at  public  sale  to  the  best  advantage,  and  the  money  accruing 
therefrom,  be  put  to  interest  under  the  direction  of  my  executors,  and 
that  the  same,  both  principal  and  interest,  be  equally  divided  between 
the  above  named  children,  and  to  be  received  by  them  when  they"  are 
entitled  to  receive  their  proportions  of  the  negroes  above  alluded  to  ; 
and  all  the  rest  of  my  money  that  is  now  on  hand,  or  that  may  be  owing 
me,  I  wish  to  be  disposed  of  in  the  same  manner,  except  $500,"  &c. 

The  testator's  wife  Nancy  died  in  his  lifetime,  and  of  course  the  legacy 
to  her  lapsed.  The  defendant  John  M.  Barber  was  appointed  executor, 
qualified  and  took  possession  of  the  estate,  and  some  time  aferwards  was 
appointed  guardian  of  his  minor  children.  His  conduct  not  being  satis- 
factory to  his  securities  in  the  guardianship  bond,  they  filed  this  bill  for 
relief.  On  the  hearing  of  the  case  at  Chester,  in  1831,  it  was  ordered 
(by  Mr.  Justice  Johnson,  sitting  for  Chancellor  Johnston)  that  the  defen- 
dant should  account  before  the  Commissioner,  and  that  his  letters  of  guai'- 
dianship  be  revoked  unless  he  gave  new  securities,  and  that  the  complain- 
ants on  paying  the  sum  reported  to  be  due  from  the  defendant  as  guardian, 
should  be  discharged.  Tlie  case  was  again  heard  at  July  Term,  1832,  before 
Chancellor  De  Saussure,  on  exceptions  to  the  Commissioner's  report,  and 
the  leading  question  then  made  was,  whether  the  legacy  of  the  personal 
property  to  tlie  testator's  wife  Nancy,  sunk  into  the  residuum  of  the  estate, 
*9*r'l  ^^^  *passed  under  the  bequest  of  "  all  the  rest  of  my  property"  to 
the  children  of  the  defendant,  or  descended,  as  in  a  case  of  intes- 
tacy, to  his  heirs  general.  The  Chancellor  held  that  it  passed  under  the 
bequest,  and  from  this  decree  an  appeal  was  taken. 

Gregg  and  Clarke,  for  the  plaintiffs,  cited  1  Sup.  to  Yes.,  Jr.,  189, 
note  6;  18  Ves.  4(56  ;  Ambler,  b11  ;  2  Jacob  &  Walker,  405. 

De  Saussure  and  Peareson,  contra,  referred  to  1  John.  Ch.  498 ;  2 


*9T]  COLUMBIA,    JANUARY,    1833.  71 

Mad.  82;  8  Ves.  24;  Roberts  v.  Cook,  16  Ves.  451;  Ambler,  645- 
2  Roper  on  Leg.  48^,490;  4Eq.  Rep.  459;  4  Yes.  166,  708,  802;  t  lb' 
389  ;  8  lb.  12. 

Johnson,  J.  The  general  rule  very  clearly  is,  that  a  lapsed  legacy  of 
chattels  passes  under  a  general  residuary  bequest,  not  (as  is  said  by  tlie 
master  of  the  Rolls,  Sir  William  Grant,  in  Cambridge  v.  Rous,  8  Yes. 
25)  in  consequence  of  any  direct  or  expressed  intention  ;  for  it  may  be 
argued  in  all  cases,  that  particular  legacies  are  separated  from  the 
residue,  and  that  the  testator  does  not  mean  that  the  residuary  legatee 
should  take  what  is  given  from  him,  for  he  does  not  contemplate  the 
case.  The  residuary  legatee  is  to  take  only  what  is  left,  but  that  does 
not  prevent  the  right  of  the  residuary  legatee  ;  but  the  testator  is  sup- 
posed to  give  it  away  from  the  residuary  legatee,  only  for  the  sake  of  the 
particular  legatee.  It  is  therefore  giving  effect  to  the  intention  of  the 
testator.  It  is  true,  that  the  English  cases  go  very  far  to  favor  the 
residuary  legatee.  There,  the  undevised  residuum  went  to  the  executor, 
and  it  was  most  apparent  that  the  construction  was  often  strained,  to 
prevent  that  consequence.  Here,  there  is  no  such  necessity  for  perverting 
the  meaning,  as  the  law  makes  distribution  of  the  residue.  But  even 
there  the  rule  does  not  apply,  where  the  residuary  bequest  is  of  a  particu- 
lar fund  or  description  of  property,  or  other  certain  residuum,  which  I 
think  may  be  fairly  deduced  from  this  will.  The  case  of  Bland  v.  Lamb, 
2  Jacob  &  Walker,  399,  is  an  example.  The  residuary  bequest  there,  was 
in  the  words — *"  Anything  I  have  forgot,  I  leave  at  the  disposal  of  p-^qq 
Mrs.  Bland  of  Isle  worth,"  and  it  was  held  that  a  legacy  subsequently  '- 
left  to  him  by  a  relation,  did  not  pass  under  this  bequest ;  and  the  Lord 
Chancellor  Eldon  remarks  (page  405)  "  that  after  the  cases  which  had 
been  referred  to,  there  could  be  no  doubt  that  a  gift  of  the  residue  may 
have  a  limited  operation,  although  the  g  nei*al  doctrine  of  the  Court  is, 
that  if  a  person  gives  all  the  rest  of  his  personal  estate  or  property,  such 
a  gift  will  pass  not  only  that  which  he  then  has,  but  that  which  may 
become  his  property."  The  Attorney  General  v.  Johnstone,  Ambler 
517,  furnishes  another  example  of  this  sort.  Indeed  the  proposition  is 
so  palpable,  that  it  admits,  in  the  abstract,  of  no  doubt.  All  the  diffi- 
culties connected  with  it  have  arisen  in  the  application.  In  determining 
whether,  in  the  particular  case,  the  bequest  was  of  a  general  or  particular 
residuum. 

In  the  case  under  consideration,  the  intention  of  the  testator  is 
expressed,  in  the  introductory  clause  of  the  will,  in  the  following  words  : 
"  And  as  to  what  worldly  substance  it  has  pleased  God  to  bless  me  with, 
it  is  my  will  and  wish  that  it  be  disposed  of  in  the  manner  fallowing," 
&c., — and  this  circumstance  is  much  relied  on  in  all  the  cases  where  it 
exists,  to  show  the  intention  of  the  testator  not  to  die  intestate  as  to  any 
part  of  his  estate,  and  is  certainly  entitled  to  weigh  mucii  in  a  doul)tful 
construction  ;  but,  as  much  as  the  Courts  lean  in  favor  of  such  a  con- 
struction, it  has  never  been  made  to  supply  the  place  of  an  actual 
bequest.  Take,  for  example,  the  case  of  a  will  where  there  is  no  residuary 
clause,  and  the  whole  estate  is  not  specifically  disposed  of;  there  the 
general  intention  cannot  prevail,  on  account  of  the  uncertainty  who  the 
testator  intended  should  take.     So  in  the  case  of  a  speciQc  residuary 


72  SOUTH    CAROLINA    EQUITY    REPORTS.  [*98 

bequest  of  all  the  rest  aud  residue  of  cash  on  baud,  where  there  are  other 
chattels  not  disposed  of.  In  the  case  of  Bland  v.  Lamb,  before  cited,  the 
testator,  after  alluding  to  the  state  of  his  health,  states  that  he  takes  this 
method  of  showing  how  he  would  have  his  small  property  disposed  of: 
and  the  Lord  Chancellor,  conceding  that  these  terms  were  broad  enough 
to  pass  all  the  property  he  had,  held  that  subsequently  acquired  property 
did  not  pass  under  the  residuary  clause. 

^QQ-j       *The  question  then  is,  whether  by  the  terms,  "  all  the  rest  of  my 
-J  "property,"  the  testator  meant  the  general  residuum  of  his  estate,  or 
the  residuum  of  a  particular  description  of  property. 

There  can  be  no  question,  that  the  term  "property,"  as  was  said  by 
Lord  Mansfield,  in  Hogan  t'.  Jackson,  Cowp.  299,  when  unaifected  by  the 
contract,  is  sufficient  to  cover  all  that  the  testator  was  worth  ;  but  upon 
construing  it  with  reference  to  the  other  provisions  of  this  will,  I  think 
it  will  appear  that  the  testator  did  not  intend  to  use  it  here  in  that  general 
sense,  but  limited  it  to  a  particular  description  of  property. 

The  word  "property"  occurs  in  the  bequest  to  the  testator's  wife,  in 
connection  with  his  stock,  plantation  tools,  and  household  furniture,  and 
in  that  instance,  is  evidently  and  expressly  limited  to  whatever  chattels 
he  might  have  on  his  plantation,  not  falling  within  the  description  parti- 
cularly expressed.     And  again,  of  that  "  property,"  she  is  to  have  her 
choice.     In  this  instance,  too,  it  is  apparent  that  it  was  not  intended  to 
include  negroes  on  the  plantation,  or  money  on  hand,  or  due  and  owing ; 
for  these  are  all  independently  and  specifically  disposed  of.     -So,  too,  in 
the  residuary  clause,  after  the  general  bequest  of  all  the  rest  of  his  pro- 
perty, the  testator  gives  the  remainder  of  the  money  on  hand,  and  the 
money  due,  excepting  §500,  to  the  defendant's  wards  ;  and  if  he  had  in- 
tended to  use  the  word  "  property,"  in  its  unqualified  sense,  that  was  un- 
necessary.    He  directs  too,  in  the  residuary  clause,  that  all  the  rest  of 
his  p?'ope?'/y  should  be  sold  at  public  sale.     JNJouey,  or  debts  due,  or 
other   securities  for  money,    may   be   the  subject   of  public    sale ;    but 
that  is  very  much  out  of  the  usual  course  of  business,  and  it  would  never 
enter  into  the  mind  of  any  one,  that  by  direction  to  sell  property,  the 
testator  meant  money  or  choses  in  action,  for  the  obvious  reason,  that  a 
sale  could  not  essentially  change  the  quantity  or  character.     Besides,  the 
testator  reserves  $500  out  of  the  cash  fund,  for  another  purpose.     It  is 
clear,  therefore,  that  the  testator  did  not  intend  to  use  the  term  "  pro- 
perty," in  the  unlimited  and  nnqualified  sense,  in  which  it  is  generally 
*1001     ^^^^^^'^<^^ ;   find  the  ^inquiry  is,  to  w^hat  did  he  intend  to  limit  it. 
The  solution  may  be  found,  I  think,  in  the  use  he  makes  of  it  in 
the  bequest  to  his  wife.     In  that  clause  of  the  will,  it  is,  as  before  re- 
marked, evidently  used  in  a  sense  exclusive  of  negroes  and  money,  and  to 
enlarge  live  stock,  household  furniture  and  plantation  tools,  so  as  to  in- 
clude all  other  movables  about  the  plantation,  not  falling  within  those 
descriptions.     The  same  thing  precisely,  occurs  in  the  bequest  to  the 
defendant's  children  and  wards,  "  I  give  and  bequeath  to  [them]  all  the 
rest  of  ray  negroes  ;"  in  effect  specifically  those  not  before  bequeathed, 
and  in  the  same  clause  he  also  gives  to  them  all  the  rest  of  his  money  on 
hand,  or  that  may  be  due  him.     The  words  "  all  the  rest  of  my  property," 
must  therefore  be  understood  as  exclusive  of  the  negroes,  for  all  the  rest  of 
the  negroes  had  been  before  disposed  of.     Money  and  debts  must  also 


*100]  COLUMBIA,   JANUARY,    1833.  73 

be  excluded,  because  these  also  are  expressly  disposed  of;  and  for  the 
further  reason  that  they  are  not  the  subject  of  sale.  The  word  property, 
which  occurs  here,  is  then  to  be  understood  in  the  sense  in  which  it  is 
used  in  the  bequest  to  his  wife,  and  only  as  enlarging  the  particular  stock, 
household  furniture,  and  farming  tools,  so  as  to  cover  whatever  else  of 
personal  chattels  belonging  to  that  class  of  property,  which  might  be  upon 
the  testator's  plantation,  or  used  there.  It  follows,  that  nothing  else  of 
the  legacy  to  the  testator's  wife  which  lapsed  by  her  death,  but  i)roperty 
falling  within  this  description,  passes  under  this  residuary  bequest  to  the 
defendant's  wards,  and  that  so  much  of  the  legacy  to  her,  as  consisted 
of  negroes,  money  on  hand,  and  debts  due,  must  pass  as  chattels  de- 
scended to  the  testator's  heirs  general,  and  is  distributable  under  the  act 
of  the  Legislature.  In  this  respect,  therefore,  the  decree  of  the  Circuit 
Court  must  be  reversed. 

It  is  understood  that  the  defendant's  wards  (his  children)  will  be  en- 
titled to  a  distributive  share  of  the  chattels  descended,  being  amongst  the 
next  of  kin  to  the  testator.  If  that  be  true,  the  defendant,  in  the  state- 
ment of  his  accounts  as  guardian,  must  be  charged  with  the  amount  of 
*their  interest  in  them,  and  the  issues,  income  and  profits  arising  r-^-,  ^v, 
therefrom.  L 

In  other  respects,  the  decree  of  the  Circuit  Court  is  affirmed,  and  it  is 
ordered  and  decreed,  that  the  said  decree  be  reformed,  according  to  the 
principles  of  this  decree. 

O'ISTeall  and  Harper,  Js.,  concurred. 


Wm.  S.  SivnTH  V.  Jas.  W.  Maxwell,  Executor  of  George  P.  Smith. 

Settlements  in  pursuance  of  marriage  articles,  must  not  always  be  made  according 
to  their  legal  import,  but  in  conformity  with  the  intention  of  the  parties.  [*103] 

S-,  before  marriage,  executed  articles  stipulating  to  make  a  settlement  of  his 
whole  estate,  for  his  wife,  during  his  life,  and  at  his  death  to  be  equally  divided 
between  her  and  the  children  of  the  marriage :  the  wife  died,  her  husband  and  one 
child  her  surviving :  on  a  bill  filed  by  the  child,  to  carry  the  articles  into  effect : 
Held,  that  he  was  only  entitled  to  the  moiety  of  the  property  secured  by  the 
articles.  [*104] 

The  bill  in  this  case,  states  that  George  P.  Smith,  on  the  Gth  of  April, 
1813,  in  consideration  of  a  marriage  then  about  to  be  had  and  solemnized, 
between  himself  and  one  Rebecca  J.  Clayton,  executed  an  agreemeut  of 
which  the  following  is  a  copy. 

"South  Carolina — Barnwell  District. 

"Know  all  men  by  these  presents,  that  in  consequence  of  a  marriage 
about  to  take  place  between  rayseJf  and  Rebecca  J.  Clayton,  I  do  agree 
to  make  and  sign  a  legal  marriage  settlement  of  the  following  property, 
to  wit:  Selah,  Betty,  Cffisar,  Sylvia,  Sambo,  Ansel,  Mary,  Hannah, 
Hester  and  Sarah;  which  said  property  I  do  hereby  deliver  unto 
Joseph  Bellinger,  Esq.,  as  trustee  for  the  said  Rebecca  J.  Clayton,  and 
do  hereby  bind  myself  under  the  penalty  of  five  thousand  dollars,  to  exe- 
cute the  marriage  settlement  of  the  above  mentioned  property,  as  also 


74  SOUTH   CAROLINA   EQUITY   REPORTS.  [*101 

two  hundred  and  thirty-eight  acres  of  laud,  lying  in  Colleton  District,  to 
the  said  trustee,  within  three  months  from  the  date  hereof,  upon  the  fol- 
lowing conditions,  viz.  that  the  property  is  to  remain  her's  during  my 
natural  life,  and  at  my  death  to  be  equally  divided  between  her  and  all 
*lf\oi  the  *children  issuing  from  said  marriage.  In  witness  whereof  I 
-'  have  hereunto  set  my  hand  and  seal,  this  6th  April,  1813. 

[Signed,] 
Signed,  seakd^and  deUvered  in  the|      (^eORGE  SMITH,   [l.  s.] 
H.  D.  Duncan,  Sarah  Baxter."  ) 

The  bill  further  states,  that  the  said  marriage  was  solemnized,  and  the 
said  Rebecca  subsequently  departed  this  life,  leaving  her  husband  and  the 
complainant,  (the  sole  issue  of  the  marriage)  surviving — that  the  said 
George  P.  Smith  afterwards  contracted  a  second  marriage,  and  has  lately 
departed  this  life,  leaving  a  widow  and  several  children  by  his  last  mar- 
riage, having  first  executed  his  last  will  and  testament  containing  the  fol- 
lowing clauses,  "  I  do  give  to  my  beloved  wife  Sarah  Smith,  this  plantation 
I  live  on,  and  the  other  adjoining  to  it,  all  the  cattle  and  hogs,  horses,  and 
all  the  household  [furniture]  rights  and  credits  during  her  life,  and  after 
the  marriage  settlement,  George  P.  Smith  and  his  first  wife's  property 
to  be  made  good,  and  the  negroes  that  was  deeded,  to  my  son  William. 
I  also  deed  a  certain  negro  girl  to  my  wife,  named  Sarah,  as  her  own 
property  till  her  death,  and  then  she  is  to  go  to  my  daughter  Caroline" 
— that  the  said  George  P.  Smith  appointed  the  defendant  executor  of 
his  last  will  and  testament,  who  has  assumed  the  execution  thereof,  and  in 
that  character  has  taken  possession  of  the  slaves  named  in  the  said  agree- 
ment, and  their  issue,  except  two  whom  the  testator  in  his  lifetime  sold 
or  disposed  of,  contrary  to  the  said  agreement.  The  prayer  of  the  bill  is, 
that  the  defendant  may  answer,  make  a  discovery  of  the  testator's  estate, 
and  particularly  of  the  slaves  mentioned  in  the  agreement,  and  that  it 
may  be  carried  into  effect. 

The  answer  admits  the  execution  of  the  agreement,  which  comprised 
the  whole  of  the  lands  and  negroes  of  which  the  said  George  P  Smith 
was  seized  and  possessed  at  that  time — that  the  wife  departed  this  life 
many  years  ago,  leaving  her  husband  and  the  complainant  (the  sole  issue 
*1031  °^  ^^^^  marriage)  surviving — that  George  P.  Smith  *subsequently 
-'  married  a  second  wife,  by  whom  he  had  three  children,  all  of  whom 
survived  him — that  after  the  death  of  his  first  wife,  Geo.  P.  Sniith  sold 
three  of  the  slaves  included  in  the  agreement,  for  which  the  defendant  in- 
sists his  testator's  estate  is  not  accountable,  or  for  rent  or  hire.  The  an- 
swer further  states,  that  the  said  agreement  was  intended  as  a  provision 
for  the  wife  and  her  issue,  in  the  event  of  her  surviving  him,  which  event 
did  not  occur,  and  submits  whether  under  a  fair  construction  of  the  agree- 
ment, the  complainant  is  entitled  to  more  than  one-half  of  the  property 
therein  mentioned.  The  defendant  alleges  that  he  is,  and  has  been 
ready  and  willing  to  do  whatever  is  just  and  proper  in  the  premises, 
denies  all  combination,  &c. 

The  cause  was  heard  on  the  bill  and  answer,  before  Chancellor  De 
Saussure,  February,  1831,  who  ordered  and  decreed  "that  the  com- 


*103]  COLUMBIA,   JANUARY,    1833.  75 

plainant  is  entitled  to  the  whole  of  the  property  comprised  in  the  mar- 
riage articles,  and  that  the  defendant  do  deliver  up  the  same  to  him." 

From  this  decree  the  defendant  appealed,  insisting  that  on  a  fair  and 
equitable  construction  of  the  mari'iage  articles,  the  complainant  is  not 
entitled  to  more  than  half  of  the  property  in  question  ;  and  he  moves 
the  Court  of  Appeals  to  modify  or  reform  the  said  decree  accordingly. 

Patterson,  for  the  appellant. 

Bellinger,  contra. 

Harper,  J.     It  is  said  by  Atterly  in  his  Treatise  on  Marriage  Set- 
tlements, that  "  articles  being  often  carelessly  drawn,  settlements  in  pur- 
suance of  them  must  not  always  be  made  in  the  very  words  of  the  articles, 
nor  even  according  to  their  legal  import  and  operation  ;  for  if  that  was 
the  case,  they  would  often  be  of  little  avail.     But  they  must  be  made  in 
conformity  with  the  intention  of  the  parties,  or  at  least  as  near  to  it  as  is 
consistent  with  the  rules  and  principles  of  law.     In  short,  in  framing  set- 
tlements in  pursuance  of  articles,  the  articles  must  be  considered  merely  in 
the  light  of  instructions."     In  the  case  *of  Randall  v.  Willis,  to  r^ir^A 
which  he  refers,  where,  by  articles  before  marriage,  the  husband  '- 
had  agreed  to  settle  all  his  personal  estate,   of  what  kind   or  nature 
soever ;   this  was  held  to  include  only  the  personal  estate  he  should  have 
at  the  time  of  his  death,  giving  him  the  power  to  dispose  of  his  personal 
estate,  in  good  faith,  during  his  life.     The  Chancellor  says,  "  If  a  formal 
deed  was  executed  before  marriage,  containing  such  a  covenant,  it  is  im- 
possible I  could  do  any  thing  with  it.     But  an  article  is  only  the  head 
and  minute  of  an  agreement,  not  to  be  followed  literally."    Here  the  plain 
and  literal  import  of  the  terras  which  related  to  the  personal  estate  he 
possessed  at  the  time  of  signing  the  articles,  was  departed  from,  on  ac- 
count of  the  unreasonableness  of  making  "  every  chair  and  stool,  the  pro- 
visions in  the  house,  &c.,  the  subject  of  settlement."     It  is  evident  that 
much  greater  latitude  is  allowed  in  executing   marriage   articles,    and 
adapting  their  provisions  to  the  exigencies  of  a  family,  than  in  construing 
wills  and  other  instruments.     If  a  settlement  were  executed  in  the  words 
of  the  articles  we  are  considering,  the  effect  would  be  to  give  the  wife  an 
estate,  for  the  life  of  her  husband,  in  the  whole  of  the  property,  with  a 
vested  remainder  to  herself  in  one  moiety,  which,  although  slie  might  die 
in  the  lifetime  of  her  husband,  would  be  transmitted  to  her  legal  repre- 
sentatives.   But  many  absurd  and  unreasonable  consequences  would  follow 
such  a  disposition  which  we  cannot  suppose  the  party  to  have  intended. 
It  is  admitted  that  the  whole  of  the  property  included  in  the  articles,  was 
the  property  of  the  husband,  and  constituted  his  whole  estate.     Under 
a  settlement  thus  executed,  in  the  event  which  has  happened  of  the  wife's 
dying  first,  the  wife's  estate  per  aider  vie  and  her  moiety  in  remainder, 
would  be  distributable  on  her  death,  her  husband  taking  one-third  of  the 
the  life  estate,  and  a  sixth  of  the  whole  estate  in  remainder,  and  the  com- 
plainant taking  one  moiety  in  remainder  by  purchase  under  the  settlement, 
and  two-thirds  of  his  mother's  interest,  by  transmission  from  her.  ^  It  is 
unreasonable  to  suppose  that  a  man  could  have  intended  to  leave  himself 
such  "^scanty  provision  out  of  his  own  property.     If  the  wife  how-  r*]^Q5 
ever,  had  died  childless,  leaving  her  husband  surviving,  then  two 


76  SOUTH   CAROLINA   EQUITY   REPORTS.  [*105 

thirds  of  her  life  estate,  and  two-thirds  of  her  moiety,  or  one-third  of  the 
whole  estate,  in  remainder,  would  have  gone  to  her  next  of  kin,  strangers 
to  the  husband.  It  is  not  be  supposed  that  a  man  intends  thus  to  give 
his  property  to  strangers  during  his  lifetime.  The  words  of  the  articles 
are  "  that  the  property  is  to  remain  her's  during  my  natural  life,  and  at 
my  death  to  be  equally  divided  between  her  and  all  the  children  issuing 
from  the  said  marriage."  Though  these  words,  if  used  in  a  settlement, 
would  have  given  the  wife  a  vested  remainder,  yet  this  is  by  giving  them 
a  technical  and  artificial  sense.  To  the  popular  understanding  when  it 
is  said  "the  property  shall  be  her's  during  my  natural  life,"  there  will  be 
implied  some  idea  of  her  living  during  his  lifetime  to  enjoy  it,  and  when 
it  is  given  to  her  at  his  death,  some  condition  of  her  being  alive  to  take 
it.  In  the  natural  and  popular  sense,  a  gift  to  her,  imports  a  benefit  to 
herself,  which  she  is  personally  to  enjoy.  At  all  events,  the  words  are 
capable  of  such  a  meaning,  and  certainly  it  is  the  more  reasonable  and 
probable  one.  The  general  objects  of  a  marriage  settlement,  are  a  pro- 
vision for  the  wife  for  her  life,  and  for  the  issue  of  the  marriage.  These 
are  effected  by  the  construction  I  have  given  the  articles. 

It  was  suggested  that  the  word  her''s,  was  inserted  by  mistake,  and  that 
the  provision  really  intended,  was  that  "the  property  is  to  remain  mine 
during  my  life."  This  may  be,  but  there  is  no  evidence  of  it.  If  it  was 
to  remain  her's,  I  suppose  the  husband  expected  to  have  the  enjoyment  of 
the  income.  If  the  construction  I  have  given  the  articles  be  correct,  then 
the  provision  for  the  wife  was,  that  the  whole  of  the  property  should  be 
her's  during  the  joint  lives  of  herself  and  her  husband,  and  if  she  should 
survive  him,  a  moiety  to  her  absolutely,  without  any  disposition  of  that 
portion  in  the  event  of  his  surviving  her.  The  property  having  been  the 
husband's,  every  thing  that  was  not  disposed  of  remained  his,  and  having 
survived  his  wife,  the  moiety  given  to  her  in  remainder,  *on  con- 
tingency, became  absolutely  his,  and  is  disposed  of  by  the  will. 
The  complainant  is  therefore  entitled  only  to  the  moiety  of  the  property 
secured  by  the  articles,  and  to  an  account  of  the  rents  and  profits,  from 
the  time  of  his  father's  death. 

It  is  therefore  ordered  and  decreed,  that  the  decree  of  the  Chancellor 
be  modified  according  to  the  views  herein  expressed. 

Johnson  and  O'Neall,  Js.,  concurred. 


*106] 


George  Hillegas  and  Wife,  and  others,  vs.  Thomas  L.  Hartley. 

It  is  not  necessary  to  the  validity  of  recording,  that  the  probate  of  the  witness 
should  be  endorsed  on  the  deed. — (per  Chancellor  De  Saussure.)  [*107] 

Where  a  feme  covert  joins  her  husband  in  a  conveyance,  and  renounces  her  inheri- 
tance according  to  the  act  of  1795,  the  renunciation  is  not  "complete  and  legal" 
until  recorded  ;  and  if  it  has  not  been  recorded  within  the  time  prescribed  by  the 
Registx-y  Act  (1785),  it  is  absolutely  void.  [*110] 

Bill  for  partition  of  a  tract  of  land,  of  which,  as  the  plaintiffs  allege, 
Mary  Hartley,  deceased,  the  defendant's  wife,  died  seized,  and  in  which 
they  claim  an  undivided  interest  as  her  heirs  at  law,  .she  having  left  no 


*i06]  COLUMBIA,    JANUARY,    1833.  77 

issue.     The  facts  set  forth  in  the  answer,  and  which  were  in  evidence  are 
these  : 

Mary  Hartley  being  seized  in  her  own  right  of  the  land  in  question,  on 
the  12th  of  Februrary,  1825,  joined  her  husband  in  a  conveyance  thereof 
to  Wm.  J.  Reese,  and  on  the  28th  of  February,  1825,  made  a  renuncia- 
tion of  her  inheritance  on  the  deed,  in  due  form,  before  a  justice  of  the 
quorum.  The  deed  and  renunciation  endorsed  on  it,  were  recorded  in  the 
office  of  register  of  mesne  conveyances  for  Sumter  District,  (where  the 
land  lies,  and  the  parties  lived,)  on  the  28th  of  October,  1826  :  there  was 
no  probate  of  a  subscribing  witness  on  the  deed,  nor  any  evidence  that  it 
had  been  proved  before  recording,  Mrs.  Hartley  died  soon  after  execu- 
ting the  deed  and  renunciation  to  Reese,  and  before  they  were  re- 
corded. 

The  question  made  in  the  case,  was,  whether  the  deed  *from  the  p,  ^  ^ 
defendant  and  his  wife  to  Reese,  was  such  a  perfect  release  of  her  L  -^^^ 
inheritance  as  passed  the  estate.  For  the  plaintiffs,  it  was  contended  that 
the  conveyance  not  having  been  legally  recorded,  was  void,  and  that  con- 
sequently they  were  entitled  to  a  moiety  of  the  estate.  They  did  not, 
however,  seek  to  disturb  the  sale,  but  only  claimed  their  shares  of  the  pur- 
chase money,  which  the  defendant  had  received. 

The  case  was  heard  at  Sumter,  February,  1832,  and  the  following 
decree  pronounced. 

De  Saussure,  Chancellor.  All  the  forms  prescribed  by  the  statute 
have  been  complied  with.  But  it  is  argued  that  there  is  no  probate  of 
the  deed,  actually  attested  and  endorsed,  without  which  it  could  not  be 
legally  recorded. 

I  am  not  sure  that  it  is  necessary  to  the  validity  of  a  deed  directed  to 
be  recorded,  that  the  probate  should  be  endorsed.  The  officer  entrusted 
with  that  power  and  duty,  may  swear  the  subscribing  witnesses  to  the 
deed,  and  satisfy  his  own  mind,  without  endorsing  the  attestation — cer- 
tainly the  statute  we  are  considering  does  not  prescribe  it ;  it  is,  however, 
generally  done,  and  it  is  better  done.  But  to  make  the  endorsement  of 
the  attestation  by  the  officer,  a  ground  to  invalidate  the  deed,  is  to  make 
the  act  of  the  parties  depend  not  upon  their  performance  of  what  is 
required  of  them  to  be  done,  but  upon  the  omission  or  neglect  of  a  third 
person,  the  officer,  in  whom  the  country  have  placed  confidence. 

I  am  strongly  inclined  to  think  that  as  the  duty  of  recording  is  put  on 
that  officer,  it  will  be  presumed  when  he  has  recorded  a  deed,  that  all  was 
done,  which  was  necessary  to  be  done,  to  perfect  the  instrument  and  enti- 
tle it  to  record. 

Another  objection  is,  that  the  deed  and  renunciation  not  having  been 
recorded  till  after  the  death  of  the  wife,  the  recording  afterwards  is  too 
late. 

This  is  a  grave  objection,  and  may  have  a  most  extensive  operation. 
The  statute  does  not  limit  the  time  luithin  which  the  wife  is  to  declare 
her  consent  to  the  release  of  her  interest.  It  is  definite,  except  that  it 
must  be  after  seven  days. 

*But  the  renunciation  shall  not  be  considered  as  being  complete  r:iciQQ 
or  legal,  until  the  same  shall  be  recorded  in  the  office  of  mesne  L 
conveyance.     It  may  be  done  in  three  months  or  three  years.     Xow  sup- 


78  SOUTH   CAROLINA   EQUITY   REPORTS.  [*108 

pose  in  the  case  of  a  marriage  settlement,  which  the  law  directs  to  be 
recorded  within  three  months,  the  wife  dies  in  one  month,  and  the  deed  is 
recorded  after  her  death,  and  before  the  expiration  of  the  three  months, 
would  that  avoid  the  deed  ? — assuredly  not,  yet  the  recording  is  essential 
to  give  validity  to  the  deed. 

I  think  this  reasoning  applies  to  the  case  before  us.  It  may  be 
recorded  at  any  time,  and  when  recorded,  it  has  full  force  and  effect.  It 
is  an  act  not  to  be  done  by  the  wife — her  consent  to  the  recording  is  not 
essential. 

She  has  done  all  that  was  necessary  for  her  to  do — and  the  recording  is 
good  in  my  jndgment,  though  not  made  till  after  her  death. 

It  is  therefore  ordered  and  decreed,  that  the  bill  be  dismissed. 

From  this  decree  the  plaintiffs  appealed,  on  the  grounds  taken  below. 

De  Saussure,  for  the  appellants. 
Haynesioorth,  contra. 

Harper,  J.  We  propose  to  consider  more  particularly  the  first 
ground  of  the  complainants'  motion.  The  question  is  one  of  considera- 
ble doubt  and  difficulty ;  but  from  the  best  view  we  have  been  aVjle  to 
take  of  it,  we  have  come  to  a  different  conclusion  from  that  of  the  Chan- 
cellor. The  case  of  Gough  v.  Walker,  1  N.  M'C.  469,  which  was  prin- 
cipally relied  on  by  the  complainants'  counsel,  did  not  arise  under  the  act 
of  1795,  which  is  now  in  question,  but  under  that  of  1731, (a)  providing 
that  a  married  woman  freely  and  voluntarily  joining  her  husband  in  a  con- 
veyance, and  "acknowledging  the  same  before  the  Chief  Justice  before 
the  time  being,  or  before  any  persons  thereunto  by  him  authorized,  and 
certified  by  the  said  Chief  Justice,  and  recorded  in  the  office  of  pleas, 
*in9l  ^^^^'^  ^^  deemed  as  effectual  and  valid  in  the  law,  to  all  *intents 
^  and  purposes  whatsoever,  as  any  fine  passed  in  due  form  of  law  in 
his  majesty's  Court  of  Pleas  at  Westminster,  for  conveying  of  lands  in 
Great  Britain."  P.  L.  132.  As  was  truly  observed  in  the  case  of  Gongh 
and  Walker,  the  object  of  the  act  was  to  establish  a  mode  of  proceeding 
similar  to  that  by  fine  in  great  Britain.  That  was  a  proceeding  by  ficti- 
tious suit  in  Court,  and  of  course  a  matter  of  record.  Blackstone  after 
speaking  of  the  commencement  of  the  suit,  the  licentia  concordandi,  and 
the  concord  observes  "  This  acknowledgment  must  be  made  either  openly 
in  the  Court  of  Common  Pleas,  or  before  the  Lord  Chief  Justice  of  that 
Court,  or  else  before  one  of  the  Judges  of  that  Court,  or  two  or  more 
Commissioners  in  the  country,  empowered  by  special  authority  called  a 
writ  of  dedimus  potestatem.''^  2  Bl.  Com.  351.  "If  there  be  any  feme 
covert  among  the  cognizors,  she  is  privately  examined  whether  she  does  it 
willingly  and  freely,  or  by  compulsion  of  her  husband." 

"  By  these  acts  all  the  essential  parts  of  a  fine  are  completed,  and  if 
the  cognizor  dies  the  next  moment  after  the  fine  is  acknowledged,  provi- 
ded it  be  subsequent  to  the  day  on  which  the  writ  is  made  returnable,  still 
the  fine  shall  be  carried  on  in  all  its  remaining  parts."  That  is  to  say,  the 
note  of  the  fine,  and  foot  of  the  fine,  of  which  indentures  are  made,  and 

(a)  The  Act  of  1731  is  entirely  superseded  by  .that  of  '95;  at  this  day  few,  if  any 
cases,  can  arise  under  the  former.  R. 


*109] 


COLUMBIA,    JANUARY,    1833.  79 


delivered  to  the  parties,  are  entered.  This  seems  to  be  equivalent  to  the 
entering  up  of  final,  after  interlocutory  judgment  in  other  cases,  and 
might,  I  suppose,  be  done  at  any  time  within  the  year  and  day.  If  from 
any  cause  it  should  be  neglected  for  a  long  period,  it  is  probable  that  it 
could  not  be  done  without  a  rule  to  the  parties,  to  show  cause  against  it, 
or  if  the  parties  were  dead,  to  their  representatives,  and  after  a  great 
lapse  of  time  would  not  be  done  at  all.  The  Court,  however,  in  Gough 
V.  Walker,  determined  that  where  a  renunciation  of  dower  had  not  been 
recorded  during  the  lifetime  of  the  husband,  it  could  not,  under  the  act  of 
1731,  be  recorded  afterwards. 

The  case  seems  to  me  to  be  stronger  for  the  complainants  under  the  act 
of  1795.  The  act  directs,  that  any  ^married  woman  may  renounce  r^j-i  ^^ 
her  inheritance,  by  going  before  a  judge  or  justice,  and  submitting  L 
to  an  examination,  of  which  a  certificate  shall  be  made  in  the  prescribed 
form  ;  "and  such  renunciation  shall  not  be  considered  as  being  complete 
or  legal,  until  the  same  shall  be  recorded  in  the  oHice  of  mesne  convey- 
ances, or  office  of  the  Clerk  of  the  County  Court,  in  the  District  or 
County  where  the  land  lies."  2  Faust.  6.  This  seems  to  deprive  the  pro- 
ceeding of  any  analogy  to  a  proceeding  of  record  in  Court,  and  to  make 
it  purely  a  mode  of  conveyance.  What  is  the  meaning  and  effect  of  the 
words  "shall  not  be  considered  as  being  complete  or  legal  ?"  I  cannot 
imagine  any  other  than  that  the  renunciation  shall  have  no  operation  or 
effect  whatever,  even  between  the  parties.  W^hatever  reasons  may  have 
governed  the  legislature  in  making  the  enactments,  the  words  are  too 
plain  to  admit  of  question.  The  security  and  protection  of  the  woman 
must  have  been  in  some  way  the  object  of  the  provision. 

It  was  argued,  however,  that  the  act  fixes  no  time  within  which  the 
recording  shall  take  place,  and  that  it  may  therefore  bp  at  any  time  short 
of  a  prescriptive  bar.  If  the  act  of  1795  had  said  nothing  about  record- 
ing, I  think  the  certificate  would  come  under  the  general  provision  of  the 
act  of  1785  on  the  subject  of  recording  conveyances  of  land.  This  is  a 
mode  of  conveying  land.  The  certificate  of  renunciation  is  an  essential 
part  of  the  conveyance  in  which  the  woman  joins  her  husband,  which,  as 
to  her,  is  incomplete  and  null  without  it.  This  would  not  apply  to  the 
proceeding,  under  the  act  of  1731,  considered  as  a  proceeding  of  record 
in  Court. 

The  terms  of  the  act  are,  "  that  no  conveyance  of  lands,  tenements  or 
hereditaments  within  this  State,  shall  pass,  alter  or  change  from  one  per- 
son to  another,  any  estate  of  inheritance  in  fee  simple,  or  any  estate  for 
life  or  lives,  nor  shall  any  greater  or  higher  estate  be  made  or  take  effect 
in  any  person  or  persons,  or  any  use  thereof,  to  be  made  by  bargain,  sale, 
lease  and  release,  or  other  instrument,  unless  the  same  be  made  in  writing, 
signed,  sealed  and  recorded  in  the  Clerk's  Office  of  the  county  where  the 
*land  mentioned  to  be  passed  or  granted,  shall  be,  in  manner  fol-  r*j^jj 
lowing ;  that  is  to  say,  if  the  person  or  persons  who  shall  make 
and  seal  such  instrument  of  writing,  shall  be  resident  within  the  State  at 
the  time  of  making,  signing  and  sealing  the  same,  then  the  recording 
shall  be  ^v^fh^n  six  months,  &c."  If  not  recorded  within  the  time,  the 
act  provides  that  the  conveyance  shall  only  be  good  between  the  parties 
to  it.  The  whole  deed— every  essential  part  of  it,  must  be  recorded,  and 
without  the  certificate  of  renunciation,  the  law  docs  not  regard  the  instru- 


80  SOUTH   CAROLINA   EQUITY   REPORTS.  [*111 

ment  as  the  married  woman's  deed,  nor  can  it  affect  her  inheritance.  The 
purposes  of  the  law  would  not  be  effected  by  recording  the  conveyance 
without  the  renunciation. 

But  does  the  act  of  1195  exempt  these  certificates  from  the  operation 
of  the  terms  of  that  of  1*185  ?  I  do  not  perceive  how  this  can  be  said. 
It  directs  that  the  renunciation  shall  not  be  complete  and  legal  until 
recorded ;  it  provides  no  time  for  the  recording,  but  leaves  that  to  the  gene- 
ral law  on  the  subject  of  recording  conveyances.  It  seems  to  me  that  we 
must  conclude  the  act  of  1795,  to  have  altered  the  effect  of  that  of  1785 
only  in  this  respect ;  that  leaving  the  time  within  which  the  recording  is 
required  to  be  as  before,  it  provides  that  unless  so  recorded,  the  instru- 
ment shall  have  no  operation  or  effect,  even  between  the  parties  to  it. 
Although  the  woman,  therefore,  should  die  within  one  month  from  the 
renunciation,  still  it  would  be  good  if  recorded  within  six  months  ;  how- 
ever long  she  might  live,  it  would  be  void  if  not  recorded  within  the  six 
months.  It  is  with  some  hesitation  that  we  have  come  to  this  conclusion, 
but  if  we  err,  we  do  so  in  promoting  the  general  policy  of  the  law,  which 
intends  the  protection  of  married  women. 

The  defendant  objects  that  William  J.  Reese,  the  purchaser  of  the 
land  is  not  a  party.  But  as  the  complainants  express  their  willingness  to 
confirm  the  sale  to  him,  and  only  seek  a  moiety  of  the  purchase  money 
received  by  the  defendant,  and  his  interest  will  not  be  effected  by  the 
decree,  that  is  not  necessaiy. 

^,-|n-]  *It  is  ordered  and  decreed,  that  upon  the  complainants'  duly 
-J  executing  a  release  of  all  their  interest  in  the  land  in  question,  to 
the  said  William  J.  Reese,  and  depositing  the  same  with  the  Commis- 
sioner, the  defendant  account  for  and  pay  to  them  a  moiety  of  the 
purchase  money  received  by  him  on  the  sale  of  the  said  land,  with 
interest  from  the  time  of  receiving  the  same.  The  defendant  to  pay  the 
costs  (a) 

Johnson,  J.,  concurred. 

O'Neall,  J.,  having  been  absent  at  the  argument,  gave  no  opinion. 


Ex  parte  F.  F.  Calmes. 


No  mode  of  investment  having  been  prescribed  by  the  ■will,  the  Court  ordered  a 
residuary  trust  fund  to  be  invested  in  laud  and  negroes,  subject  to  the  trusts  and 
limitations  of  the  will.  [*113] 

Thomas  Beasley,  deceased,  by  his  will  bequeathed  certain  negroes  in 
trust  for  the  use  and  benefit  of  his  daughter,  Mrs.  Jane  Williams,  during 
her  life,  and  at  her  death  to  her  children  ;  and  after  making  several 
devises,  he  directs  his  executors  to  sell  the  remainder  of  his  real  and 
personal  estate,  and  giving  an  equal  portion  of  the  proceeds  to  Mrs. 
Williams,  directs  that  it  shall  also  be  held  in  trust,  and  subject  to  the 

(a)  [See  also  2  Con.  Rep.  12.] 


*112]  COLUMBIA,    JANUARY,    1833.  81 

same  limitation  as  the  negroes.  The  husband  of  the  cestui  que  trust 
owns  uo  land.  Under  these  circumstances  the  petitioner,  who  is  the 
trustee,  filed  this  petition,  praj^ing  that  the  residuary  legacy  may  be 
invested  in  the  purchase  of  land  and  slaves.  The  Commissioner,  on  a 
reference  ordered  for  that  purpose,  reported  these  facts,  and  recommended 
the  investment. 

Chancellor  Johnston  dismissed  the  petition,  and  the  petitioner 
appealed. 

*Hakper,  J.  The  petition  is  not  to  make  any  disposition  i-^iio 
of  the  slaves  whatever,  nor  to  change  any  investment  directed  L 
by  the  will.  It  is  to  obtain  the  sanctiou  of  the  Court  for  the  investment 
of  a  residuary  trust  fund,  where  no  mode  of  investment  has  been  directed 
by  the  testator.  On  this  subject,  we  must  rely  on  the  opinion  of  the 
Commissioner,  which  seems  well  supported  by  the  testimony. 

To  prevent  future  difficulty,  it  is  proper  to  direct  that  the  conveyance 
to  the  trustee  shall  be  on  the  trusts  of  the  will.  I  do  not  mean  that  the 
terms  of  the  will  shall  be  adopted  in  the  conveyance,  for  the  same  words 
have  often  a  different  effect,  in  a  deed  or  a  will,  but  that  the  will  shall  be 
referred  to,  and  the  trusts  of  the  deed  declared  to  be  the  same  with  those 
which  are  created  by  the  will,  with  respect  to  the  fund  in  question. 

It  is  ordered  that  the  order  of  the  Chancellor  be  reversed,  and  the 
report  of  the  Commissioner  confirmed  and  made  the  decree  of  the  Court. 

Johnson  and  O'Neall,  Js  ,  concurred. 

J.  J.  Caldwell,  for  the  petitioner. 


John  Eigleberger,    Martin  Kinad,    Sen.,    and   Adam  Kibler  v. 
Michael  Kibler,  Sen.,  and  David  Kibler. 

The  right  of  a  creditor  to  avoid  a  voluntary  conveyance,  arises  from  the  fact  that 
he  cannot  otherwise  be  paid;  and  if  a  creditor  comes  into  equity  to  avoid  such  a 
conveyance,  it  must  appear  that  he  had  no  other  means  of  payment :  certain 
creditors,  (the  plaintiffs)  with  a  knowledge  of  such  conveyance,  stood  by  and 
permitted  other  and  junior  creditors  to  exhaust  the  debtor's  property,  and  mean- 
while the  donee  had  possession,  and  made  permanent  improvements  on  tlie  land ; 
on  a  bill  filed  to  set  aside  the  conveyance :  Held,  that  they  were  not  entitled  to 
relief.  [*120] 
The  statute  of  limitations  runs  from  the  discovery  of  a  fraud.  [*]21] 
A  subsequent  creditor  with  notice,  is  not  entitled  to  have  a  voluntary  conveyance 
set  aside.  [*l:il] 

The  bill  states  that  the  plaintiffs,  John  Eigleberger  and  Martin  Kinard, 
have  lately  obtained  judgments  for  considerable  sums  against  the  defend- 
ant, Michael  Kibler,  on  debts  which  were  contracted  as  far  back  as  1816 
and  '18,  and  which  have  been,  by  successive  renewals  of  notes,  continued 
to  the  notes  on  which  judgments  were  obtained.  That  the  plaintiif, 
Adam  Kibler,  also  lately  obtained  judgment  against  Michael,  for  a  large 
sum,  which  was  founded  in  part  on  a  debt  contracted  in  1816,  by  note 
transferred  to  this  plaintiff  and  renewed  to  himself  in  1827  ;  and  the 
*balance  of  the  judgment  was  for  a  note  taken  to  indemnify  him  r*|j^ 
for  his  suretyship  for  Michael,  for  debts  for  which  he  has  since  been  •- 
YoL.  I.— 6 


82  SOUTH    CAROLINA    EQUITY    REPORTS.  [*114 

sued,  and  judgments  obtained  against  him.  That  Michael  Kibler,  in  1822, 
conveyed  a  tract  of  land  to  his  son  (the  other  defendant)  David  Kibler. 
That  he  was  then  embarrassed — that  the  sale  was  voluntary,  and  intended 
to  defraud  the  rights  of  subsisting  and  subsequent  creditors — and  that 
Michael  has  since  become  entirely  insolvent.  The  bill  prays  that  the 
conveyance  may  be  declared  fraudulent  and  set  aside,  and  the  land  made 
liable  for  the  payment  of  these  debts. 

The  answer  of  David  Kibler,  admits  that  the  conveyance  to  him  was 
voluntary,  but  denies  that  it  was  intended  to  defraud  creditors.  That  his 
father,  Michael  Kibler,  at  the  date  of  the  conveyance,  had  the  ability  to 
pay  all  his  debts,  and  has  since  become  insolvent,  from  speculations  and 
misfortunes.  That  the  plaintitTs  well  knew  of  the  conveyance  to  him  at 
the  time  it  was  made  ;  and  that  they  afterwards  indulged  the  said 
Michael,  and  renewed  his  note,  and  permitted  the  defendant  to  remain  in 
the  possession  of  the  land,  and  make  permanent  and  valuable  improve- 
ments on  it ;  and  submits  whether  these  facts  are  not  a  good  bar  to  the 
relief  sought.  The  answer  also  relies  on  the  statute  of  limitations,  and 
insists  that  the  plaintiffs  have  an  adequate  remedy  at  law.  The  bill  was 
taken  pro  confesso,  as  to  Michael  Kibler. 

The  case  came  to  a  hearing  at  Newberry,  July,  1832.  So  much  of  the 
testimony  as  is  necessary  to  a  correct  understanding  of  the  grounds  made 
and  decided,  is  set  forth  by  the  Chancellor  in  the  following  decree  : 

Johnston,  Chancellor.  "  I  will  consider  the  cases  of  the  three  plain- 
tiffs separately — first  Eigleberger's.  It  is  said  he  is  not  a  real,  but  only 
a  nominal  plaintiff,  that  his  name  is  employed  by  the  sureties  to  the  judg- 
ment held  by  him  ;  this  cannot  vary  the  decree  on  his  case.  Those 
claiming  in  his  name  can  claim  no  more  by  virtue  of  that  name  tlian  he 
could  himself.  The  rights  of  a  nominal,  are  the  measures  of  the  rights 
of  the  real  plaintiff  who  uses  his  name.  The  latter  is  regarded  as  an 
assignee.  If  the  sureties  have,  as  sureties,  any  equities,  they  must  come  into 
^.  „-,  *  Court  in  their  own  name  to  assert  them.  None  of  them  but  Adam 
-■  Kibler  has  done  so,  and  none  except  him  can  be  noticed.  But  as 
his  case  as  surety  is  distinguished  from  the  case  he  sets  up  in  the  name 
of  Eigleberger,  it  will  not  be  confounded  with  it ;  it  will  be  considered, 
when  we  come  to  examine  the  rest  of  the  claim  set  up  by  him  in  his  own 
name ;  at  present  we  will  confine  ourselves  strictly  to  the  claim  of  Eigle- 
berger. Eigleberger's  demand  consists,  in  law,  of  two  judgments  signed 
November  24th,  1 830  ;  one  of  which  is  founded  on  a  note  dated  Sep- 
tember 23,  1828,  and  due'at  three  days,  and  the  other  on  another  note, 
dated  January  13th,  1829.  The  faces  of  his  notes  show  him  to  be  a 
creditor  subsequent  to  the  date  of  the  deed  to  David,  which  he  seeks  to 
avoid,  and  as  a  subsequent  creditor,  he  is  not  entitled  to  the  relief  which 
he  seeks,  because  according  to  his  own  testimony,  be  became  such 
creditor  with  full  notice  of  the  deed.  But  it  is  said  lie  is  entitled  to 
rank  as  a  subsisting  creditor.  It  is  alleged  that  one  of  his  judgments 
(the  one  to  which  Wicker  and  H.  Kinard  are  sureties)  resulted  from  a 
debt  originating  at  Shealy's  sale.  The  proof  of  this  ought  to  be  clear. 
So  far  from  it,  however,  if  either  of  the  judgments  had  such  origin,  there 
is  as  much  evidence  that  it  was  the  other  judgment  as  this.  There  is  no 
other  proof  of  the  allegation  than  that  old  Kibler  bought  to  an 
uncertain  amount  at  Shealy's  sale,  in  18 It,  and  that  his  administrator 


*115]  COLUMBIA,    JANUARY,    1833.  83 

transferred  a  note  on  hira  in  1823,  to  John  Kibler,  Jr.  The  date  of  the 
note  when  it  fell  clue,  the  consideration  whether  it  was  an  original  or 
renewed  note — all  these  things  are  left  in  uncertainty.  How  do  we 
know  that  the  note  transferred  to  John  Kibler  arose  at  Shealy's  sale  ? 
How  do  we  know  it  bore  date  prior  to  the  date  of  David's  deed,  Decem- 
ber ISth,  1822  ?  If  it  arose  out  of  Shealy's  sale,  and  bore  date  before 
the  deed,  how  does  it  appear  that  it  was  not  the  original  note  of  1817, 
and  barred  at  the  date  of  the  deed  ?  And  if  so,  if  the  note  which  is 
made  the  ground  of  relief  for  Col.  Eigleberger,  was  barred  at  the  execu- 
tion of  the  deed,  must  not  the  right  to  the  relief  itself  fall  to  the  ground  ? 
I  *think  so.  Here  is  a  fit  place  to  express  an  opinion  as  to  the  r>};iip 
effect  that  old  Kibler's  acknowledgment  of  debts,  made  subsequent  L 
to  the  deed  should  have  on  David,  to  whom  he  had  conveyed.  The 
utmost  that  any  one  could  contend  for,  would  be,  that  such  subsequent 
acknowledgments  by  old  Kibler,  would,  if  made  bona  fide  and  not  con- 
clusively, be  good  to  keep  alive  a  demand  which  was  at  the  date  of  the 
conveyance,  in  full  force,  either  on  its  face  or  by  virtue  of  prior  reviving 
promises.  That  as  to  all  subsequent  bona  fide  acknowledgments,  such 
effect  would  be  no  injustice  to  one  who  taking  as  a  volunteer,  took  sub- 
ject to  the  existing  debts  ;  and  as  between  the  donor  and  donee,  the 
latter  became  from  the  date  of  the  gift,  the  trustee  of  the  former,  to  pay 
off  the  incumbrances  with  the  property  received  ;  and  thus  a  priority 
would  exist  between  them,  even  after  the  conveyance,  sufficient  to  bind 
the  donee,  by  the  acts  of  his  trustee,  if  not  fraudulently  done.  Be  this 
as  it  may,  there  is  no  necessity  to  express  an  opinion  upon  it.  On  the 
other  hand,  I  hold  that  David  is  not  bound  by  any  acknowledgments 
made  by  his  father  after  the  deed,  of  any  debt  then  barred.  My  positions 
then  are,  that  there  is  not  evidence  tracing  Col.  Eigleberger's  debt  back 
beyond  1823.  That  if  the  evidence  does  trace  it  back  further,  it  indi- 
cates no  time  at  which  we  can  say  with  any  confidence,  that  the  note 
transferred  to  John  Kil)ler  had  its  origin,  unless  we  connect  it  with 
Shealy's  sale,  and  then  it  was  barred  at  the  date  of  the  deed — that  there 
is  no  evidence  of  any  reviving  promises  before  the  date  of  the  deed,  and 
if  there  was,  no  time  is  assigned  to  them  ;  so  that  even  after  that,  the  bar 
might  have  been  complete,  at  the  date  of  the  deed  ;  that  if  barred  when 
the  deed  was  executed,  no  subsequent  act  or  admission  of  old  Kibler 
could  receive  the  debt  so  as  to  bind  David.  That  Eigleberger  being 
barred  on  the  contract,  is  incidentally  barred  of  the  relief  he  claims. 
But  I  go  further,  I  think  he  is  barred  directly  as  to  the  relief.  Grant 
that  his  debt  originated  before,  and  was  in  full  force  at  the  date  of  the 
deed.  Grant  furtlier,  that  the  note  was  in  full  force  when  transferred  to 
John  Kibler  in  1823.  If  Eigleberger  goes  back  to  1823,  to  claim  the 
benefit  of  *the  rights  which  John  Kibler  then  had,  he  must  put  r^jj-^ 
himself  in  his  shoes,  and  be  suljject  to  his  disabilities.  The  act  of 
limitations  runs  from  notice  of  the  fraud.  That  which  is  here  charged 
as  a  fraud,  was  known  to  John  Kibler  in  1822,  when  he  witnessed  the 
deed  ;  and  he  had  notice  further  when  David  took  possession  in  1824. 
There  is  still  another  ground  upon  which  Col.  Eigleberger  must  fail, 
whether  he  be  regarded  as  a  subsequent  or  subsisting  creditor.  It  is, 
that  he  has  full  remedy  at  law.  It  does  not  appear,  either  by^the  bill  or 
by  the  testimony,  that  (whatever  may  be  the  case  with  old  Kibler)  his 


84  SOUTH   CAROLINA   EQUITY   REPORTS.  [*117 

sureties  are  not  very  solvent,  and  that  a  ji.  fa.  or  ca  sa.  will  not  make 
the  money. 

Next,  Kinard's  case. 

This  stands  on  a  judgment  confessed  May  21st,  1832,  upon  a  note  exe- 
cuted by  old  Kibler,  on  the  10th  of  the  same  month. 

David  had  been  upwards  of  eight  years  in  possession,  with  a  notorious 
claim,  and  his  deed  had  been  nearly  two  years  on  record  ;  taking  things  in 
this  situation,  Kinard  is  a  subsequent  creditor  with  notice.  But  in  this 
case,  as  in  Eigleberger's,  an  attempt  is  made  to  trace  back  the  debt,  and 
to  show  that  Kinard  was  a  subsisting  creditor  at  the  date  of  the  deed  to 
David  Kibler.  The  proof  ought  to  be  plenary  ;  it  is  very  loose — the  first 
step  carries  us  back  to  a  note  executed  the  1st  February,  1828,  and  due 
at  three  days.  The  next,  by  very  flimsy  testimony,  carries  us  to  what 
one  of  the  witnesses  thinks  was  a  note  dated  December  27th,  1823,  and 
due  at  three  days.  Can  we  go  further  ?  The  witness  says,  that  note 
was  the  renewal  of  another,  of  which  Kinard  retained  possession.  It  was 
then  in  his  power  to  produce  it,  and  the  verbal  proof  of  its  contents,  date 
&c.,  is  competent.  The  notes  produced  have  no  connection,  so  far  as 
was  shown,  with  the  judgment.  The  proof  then  at  most,  goes  no  further 
back  than  1823.  As  to  what  David  Kibler  says  in  his  answer,  that  he 
had  been  told  that  a  small  part  of  Kinard's  debt  was  contracted  for  cur- 
rent expenses,  but  that  he  did  not  know  how  the  fact  was,  that  cannot 
*nQi  operate  as  an  admission  of  the  *fact.  The  remarks  on  Eigleber- 
-^  ger's  case,  touching  the  bar,  both  as  to  the  notes  and  the  fraud,  will, 
with  modifications  which  will  readily  suggest  themselves,  apply  to  this 
case.  There  was  no  proof  of  the  credits  endorsed  on  the  supposed  notes 
of  1823. 

There  is  another  matter  ;  Kinard  had  surety  for  his  demand.  There 
is  no  proof  that  when  he  relinquished  it,  it  was  not  available.  Can  he, 
after  such  waiver  and  relinquishment,  hold  David's  land  liable  to,  and  as 
it  were,  security  for  his  debt  ?  T  doubt  it.  The  testimony  of  Jacob 
Kibler  has  thrown  suspicion  on  this  claim.  It  surely  was  competent  for 
Kinard  to  say,  whether  he  held  a  denuiiid  on  old  Kibler  or  not.  He  said 
he  had  none.  Can  it  be,  that  Adam  Kibler  and  his  father,  after  all  was 
settled,  raked  it  up  without  Kin:ird's  knowledge  ?  Come  from  what  quarter 
it  may,  I  cannot  on  the  testimony  support  it. 

Now  for  Adam  Kibler's  case. 

The  testimony  of  Jacob  Kibler  and  Levi  Cook  shows,  that  Adam,  in 
1828,  received  pay  for,  and  gave  up  to  his  father,  the  note  for  which  the 
$700  note  is  substituted.  I  mean  that  he  received  pay  for  the  note  he 
alleges  originated  at  Feller's  sale.  Circumstances  corroborate  their 
testimony,  even  if  they  were  not,  as  they  are,  men  of  character.  "When 
Adam  took  the  $1102  note,  on  the  6th  of  March,  1832,  why  did  he  ne- 
glect the  other  demand  ?  He  took  the  large  note  for  his  indemmity, 
and  if  the  $700  demand  would  stand  in  need  of  renewal  in  nineteen  days 
afterwards  (it  was  renewed  the  25th),  why  was  it  omitted  when  the 
large  note  was  taken  ?  Its  being  omitted  then,  and  renewed  in  so  short 
a  time  afterwards,  makes  the  renewal  look  like  an  after  thought.  I  have 
no  doubt  it  was  settled ;  and  why,  unless  for  fraud,  was  it  revived  ?  I 
cannot  support  that  part  of  this  case.  But  he  says  he  has  had  to  pay, 
and  is  liable  to  pay,  large  sums  for  his  father,  as  surety.     Is  it  not  plain 


*118]  COLUMBIA,    JANUARY,    1833.  85 

that  he  became  surety  with  liis  eyes  open  ?  Among  the  persons  to  whom 
he  became  surety,  is  David  Kibler  He  now  wishes  to  make  David's  own 
debt  liable  to  pay  the  debt  to  himself.  This  would  be  an  extraordinary 
way  *of  giving  a  man  security.  His  becoming  security  with  his  rxciiq 
eyes  open,  is  enough  for  his  case.  But,  not  to  rely  on  that,  he  L 
holds  an  ample  idemnity  against  these  securityships  in  his  own  hands.  He 
stated  to  Levi  Cook  that,  after  giving  his  father  the  Feller's  note  for  his 
land,  he  still  owed  his  father  a  balance,  for  which  he  gave  him  his  note. 
He  stated  the  same  thing  to  Jacob  Kibler,  on  two  occasions  ;  and  that 
the  note  for  the  balance  was  either  $500  or  $600.  Take  it  at  the  lowest 
of  these  sums,  and  he  owes  his  father  more  than  enough  to  indemnify 
him  for  the  balance  on  his  own  small  judgment,  and  for  what  he  is  liable 
to  Eigleberger,  David  Kibler  and  Jacob  Kibler,  and  for  what  he  has  had 
to  pay  on  Herbert's  judgment,  to  say  nothing  of  the  four  or  five  bales  of 
cotton  he  sold  last  year." 

The  bill  was  dismissed  with  costs,  and  as  among  the  plaintiffs,  Adam 
Kibler  was  made  primarily  liable. 

From  this  decree  the  plaintiffs  appealed  on  the  following  grounds  : 

1.  That  the  debts  being  in  existence  at  the  time  of  the  conveyance  of 
the  land,  the  plaintiffs  are  to  be  regarded  as  subsisting  creditors  at  that 
time,  and  entitled  to  relief  against  it. 

2.  That  the  acknowledgment  of  the  notes  by  Michael  Kibler,  would 
prevent  them  from  being  barred  by  the  statue  of  limitations. 

3.  That  the  Chancellor  erred  in  deciding  that  the  statute  of  limitations 
barred  the  plaintiffs'  right  to  relief,  after  four  years  from  the  discovery 
of  the  fraud. 

4.  That  the  Chancellor  erred  in  deciding  that  the  acts  of  Michael  after 
the  conveyance,  could  not  affect  the  rights  of  David  Kibler. 

Dunlap  and  Summer,  for  the  appellants. 

Caldwell  and  Fair,  contra. 

O'Neall,  J.  The  cases  of  Eigleberger  and  Kinard  may,  appears  to 
me,  be  put  on  the  same  ground.  For,  although  I  concur  with  the  Chan- 
cellor, that  there  was  not  sufficient  evidence  of  the  existence  of  their 
debts,  at  the  execution  of  the  deed  to  David  Kibler,  yet  I  will  concede 
to  them  all  *that  they  can  ask — that  their  debts  were  prior  to  the  r*j20 
accrual  of  the  defendant's  right,  and  still  I  think  they  are  not  en- 
titled to  recover.  The  right  of  a  creditor  to  avoid  a  voluntary  conveyance, 
where  the  possession  is  in  the  donee,  arises  from  the  fact  that  he  cannot 
otherwise  be  paid  out  of  his  debtor's  estate.  It  is  hence,  a  fraud  on  his 
rights  and  is  therefore,  as  against  him,  void.  But  if  a  creditor  should 
seek  to  set  aside,  in  this  Court,  a  voluntary  conveyance,  and  it  appeared 
that  his  debtor  had  other  property,  he  would  be  compelled  first  to  ex- 
haust it.  This  is  upon  a  first  principle  of  equity,  "  that  he  who  seeks 
equity  must  first  do  equity."  In  the  application  of  this  principle,  we  are  re- 
quired to  ascertain  what  would  be  justice  between  the  parties  :  and  surely 
there  can  be  no  injustice  to  a  creditor,  to  say  to  him,  "be  paid  out  o^^tliat 
property  of  your  debtor,  to  which  no  other  person  has  any  claim."  It 
he  is  paid,  it  is  all  that  he  has  any  right  to  ask.  In  the  cases  before  us, 
the  creditors,  with  a  full  knowledge  of  the  conveyance  to  David  Kibler, 


86  SOUTH  CAROLINA    EQUITY    REPORTS.  [*120 

and  his  actual  possession,  have  stood  by  for  near  ten  years,  and  have 
suffered  other  debts,  junior  to  theirs,  to  acquire  prior  liens,  and  the 
estate  of  their  debtor  thus  to  be  consumed.  If  they  had  been  vigilant, 
and  within  any  reasonable  time  after  David  went  into  the  possession  of 
the  land,  had  made  the  claim  to  avoid  the  conveyance,  they  would  have 
been  compelled  to  exhaust  the  rest  of  their  debtor's  property,  before  they 
could  have  resorted  to  that  conveyed  to  him,  and  out  of  this  property  of 
their  debtor's,  they  would  have  been  satisfied.  By  their  supineness,  this 
fund  has  been  taken  from  them,  and  they  cannot  now  be  permitted  to 
make  their  own  laches  an  injury  to  another.  During  the  time  the 
defendant  David  has  been  in  possession,  he  has  made  many  valuable 
improvements,  and  this  constitutes  another  reason  why  the  acquiescence 
of  the  complainants,  for  so  many  years,  in  his  title,  must  prevent  them 
from  now  disputing  it. 

Were  it  necessary  for  the  purposes  of  the  case,  I  should  have  little 
hesitation  in  saying  that  each  renewal  of  the  debt,  and  taking  a  new 
security,  was  a  satisfaction  of  the  antecedent  one,  and  that  these  renewals 
^.-li)-!-]  could  not  operate  *to  keep  in  existence,  a  charge  on  the  land 
-■  which  had  been  previous  to  them,  conveyed  away,  and  the  posses- 
sion of  which  had  accompanied  the  deed.  So,  too,  I  incline  to  the 
opinion,  that  the  defendant  is  protected  by  the  statute  of  limitations. 
The  statute  runs  from  the  discovery  of  a  fraud  ;  and  the  relief  sought  is 
not  to  recover  the  land,  but  to  be  paid  a  debt  out  of  it.  It  is  in  the 
nature  of  an  action  of  deceit.  The  injury  of  which  the  creditor  com- 
plains, is,  that  by  the  fraud  of  his  debtor,  he  cannot  be  paid.  This  is 
purely  a  pei'sonal,  and  not  a  real  action  ;  and  the  statute  runs  from  the 
discovery  of  the  fraud,  as  the  accrual  of  the  cause  of  action,  and  at  the 
expiration  of  four  years,  its  bar  is  complete. 

As  to  the  case  of  Adam  Kibler,  it  cannot  admit  of  a  question,  that  he 
is  not  entitled  to  recover.  If  he  is  a  creditor  at  all,  he  is  a  subsequent 
one  with  notice,  and  as  such  can  have  no  ground  upon  which  he  can  say, 
that  the  gift  is  a  fraud  as  to  him.  But  independent  of  this  conclusive 
objection  to  his  recovery,  then  is  another  equally  conclusive  :  all  the 
right  of  property  of  Michael  Kibler,  and  the  actual  possession,  had 
passed  from  him  to  his  donee,  long  anterior  to  the  debt  to  Adam  Kibler; 
he  can  therefore  have  no  ground,  either  legal  or  equitable,  on  which  he 
can  found  a  claim  for  relief. 

It  is  ordered  and  decreed,  that  the  decree  of  the  Chancellor  be  affirmed. 

Johnson  and  Harper,  Js.,  concurred. 


*1221  **^^^^  Chesnut  and  Wife,  and  others,  vs.  James  Strong  and 
^"'-'  Robert  Strong,  Executors  of  John  Maybin,  deceased. 

A  residuary  bequest  to  be  paid  when  the  legatee  arrives  at  twenty-one,  gives  a 
present  vested  legacy,  and  the  legatee  will  be  entitled  to  the  profits  or  interests 
(if  anj'  accrue)  in  the  interval  between  the  testator's  death  and  her  attaining 
twenty-one.  [*  128] 

The  testator  by  his  will,  directed  the  remainder  of  his  estate  to  be  sold,  and  the 
proceeds  to  be  equally  distributed  among  his  grand-daughters,  and  adds  "I  allow 


*122]  COLUMBIA,    JANUARY,    1833.  87 

my  undernamed  executors  to  retain  the  aforesaid  children's  parts  in  their  hands, 
until  the  children  arrive  at  maturity;"  on  a  bill  filed  against  the  executors  to 
account,  it  was  held,  that  parol  evidence  was  admissible  to  show  that  the  execu- 
tors retained  the  legacies  in  their  hands  without  making  interest  on  them,  in 
consequence  of  an  agreement  with  the  testator  tliat  they  should  not  be  bound  to 
invest  the  fund  or  make  interest,  nor  be  chargeable  with  interest  on  their  failure 
to  do  so:  and  that  they  accepted  the  executorship  on  that  condition.  [*12u] 
Where  there  is  something  certain  due,  and  there  is  a  doubt  whether  the  creditor 
may  not  be  entitled  to  something  more,  and  he  thinks  proper  to  accept  what  is 
certainly  due  and  give  a  receipt  in  full,  he  is  bound  by  it,  notwithstanding  it 
should  afterwards  turn  out  that  he  was  entitled  to  more.  [*r27] 

The  testator's  will,  after  certain  specific  devises,  proceeds,  viz  :  "And 
likewise  the  remainder  to  be  equally  distributed  between  Sarah,  Jennet 
and  Margaret  Maybin,  daughters  of  Andrew  Maybin ;  and  I  allow  my 
undernamed  executors  to  retain  the  aforesaid  children's  parts  that  I  have 
herein  bequeathed  to  them,  in  their  hands,  until  the  children  arrive  at  the 
years  of  maturity,"  &c  :  and  tlien  directs  a  sale  of  his  whole  real  and 
personal  estate.  The  defendants  qualified  as  executors,  and  sold  the 
estate  as  directed.  The  legatees  in  the  above  clause,  married,  and  they 
and  their  husbands  filed  this  bill  against  the  executors  for  an  account. 

The  commissioner  made  a  report,  in  which  the  defendants  were  charged 
with  considerable  balances  and  interest  thereon,  as  to  two  of  the  legatees  ; 
and  as  to  the  other,  Mrs.  Thompson,  he  reported  in  favor  of  the  defend- 
ants, on  the  ground  that  in  1827,  her  husband  had  given  a  receipt  for 
$1087  in  full  of  his  wife's  legacy,  although  if  interest  had  been  computed, 
a  much  larger  sum  would  have  been  due. 

The  case  was  heard  at  Chester,  July,  1831.  On  the  trial,  the  defend- 
ants insisted  that  they  were  only  chargeable  with  such  interest  as  they 
had  made  ;  and  tendered  parol  evidence  to  prove  an  agreement  with  the 
testator,  that  they  were  not  to  be  charged  with  interest  on  these  legacies, 
and  that  they  had  qualified  as  executors  expressly  on  this  condition. 
The  evidence  was  rejected,  and  the  following  decree  delivered. 

Johnson,  J.  {sitting  for  Chancellor  Johnston.)  It  is  objected  on 
the  part  of  the  defendants,  that  the  complainants  are  not  entitled  to  the 
interest  which  accrued  in  the  interval  between  the  death  of  the  testator, 
and  their  attaining  maturity  or  twenty-one  years  of  age. 

It  is  obvious  that  this  question  must  be  resolved  by  the  inquiry  whether 
the  testator  has  disposed  of  the  interest,  ^growing  out  of  this  part  r*]^23 
of  his  estate.  For  it  is  only  in  the  event  of  his  not  having  done  ^ 
so,  that  the  law  makes  any  disposition  of  it.  There  is  certainly  no  spe- 
cific disposition  of  it  in  the  will,  but  the  remainder  is  devised  to  the 
complainants,  and  if  no  one  else  can  claim,  of  course  they  are  entitled. 

If  there  is  no  disposition  of  the  accruing  interests  or  profits,  they  fall 
necessarily  into  the  residuum  of  the  estate,  and  must  go  with  it  according 
to  the  will,  if  there  is  any  disposition  of  the  residuum,  or  be  distributed 
according  to  our  act  of  distribution,  as  in  case  of  intestacy.  And  in  the 
case  of  Nichols  and  Osburn,  2  P.  W.  419,  cited  in  2  Roper  on  Legacies, 
212,  it  was  held  upon  very  clear  principles,  that  when  the  residue  is  so 
given,  as  not  to  be  payable  until  the  legatee  attained  twenty  one,  with  a 
limitation  over  in  the  event  of  his  dying  within  that  period,  that  the 
accruing  interest  should  go  to  his  legal  representatives  and  not  to  the 
remainder ;  and  that  too,  in  the  case  of  a  niece  and  not  a  child,  which 
seems  to  be  an  exception. 


88  SOUTH   EQUITY   CAROLINA    REPORTS.  [*123 

The  objection  has  been  attempted  to  be  sustained  upon  the  authority 
of  the  general  rule,  that  legacies  payable  at  a  future  period,  or  the  hap- 
pening of  some  contingency,  would  not  carry  interest;  and  there  is  no 
doubt  about  the  correctness  of  the  rule.  That  is  not,  however,  a  new  or 
arbitrary  rule,  but  the  result  of  a  construction  by  which  the  testator's  in- 
tention is  attained.  If  a  legacy  be  to  one  of  a  certain  sura,  when  he  shall 
attain  the  age  of  twenty-one,  we  understand  that  the  testator  meant  what 
he  expressed — that  the  legatee  should  have  that  much  at  that  time,  and 
not  in  addition  what  may  have  accumulated  upon  it  in  the  form  of  inter- 
est, or  the  profits  of  a  fortunate  investment ;  and  even  in  those  cases,  au 
exception  is  allowed  in  favor  of  a  wife  or  child  who  has  no  other  provi- 
sion for  support,  founded  on  the  supposition  that  a  husband  or  father 
would  not  will  that  his  wife  or  child  should  starve,  ad  interim,  (2  Roper, 
182,  4,  6,  and  the  cases  there  cited.) 

The  parol  evidence  tendered  by  the  defendants  to  prove  an  agreement 
*1 911  between  themselves  and  the  testator,  that  *they  were  not  to  account 
-^  for  the  interest  on  these  legacies,  and  that  they  positively  declared 
to  him  their  determination  not  to  qualify,  unless  they  were  exempt  from 
this  accountability,  cannot  be  received,  upon  the  very  familiar  rule  that 
the  terms  of  a  written  trust  cannot  be  varied  by  parol. 

The  will  creates  a  direct  trust  in  the  defendants  to  retain  these  legacies 
until  the  legatees  shall  attain  maturity,  and  the  obligation  raised  by  law 
is,  that  they  should  employ  the  fund,  so  as  if  practicable,  to  make  a  profit 
for  the  legatee.  By  qualifying,  they  have  accepted  the  trust,  and  neces- 
sarily undertook  to  fulfil  it;  nay,  more,  they  have  sworn  to  do  so,  and  the 
evidence  offered,  is  intended  to  show  not  only  that  the  testator  by  his  will, 
gave  them  the  use  of  this  fund  during  the  minority  of  the  legatees,  con- 
trary to  his  intention  plainly  expressed  in  the  will,  but  that  they  did  not 
undertake  to  do  what  they  have  solemnly  sworn  they  would  perform. 

It  is  therefore  referred  to  the  Commissioner  to  state  the  defendants' 
accounts,  charging  them  with  interest  on  these  legacies,  according  to  the 
principles  of  this  decree. 

From  this  decree  the  plaintiffs,  Thompson  and  Wife,  appealed,  on  the 
ground,  that  the  Commissioner  and  Chancellor  had  rejected  their  claim  ; 
and  the  defendants  appealed  on  the  grounds  : 

1.  That  by  the  terms  of  the  will  the  executors  are  entitled  to  retain 
the  legacies  in  their  hands,  free  of  interest,  until  the  legatees  arrive  at 
maturity. 

2.  That  the  Court  rejected  the  parol  evidence  offered  to  show  the  terras 
on  which  the  defendants  undertook  the  trust ;  the  plaintiffs'  right  to 
interest  being  at  best  but  an  equity,  and  as  such,  liable  to  be  rebutted  by 
parol. 

Clarke  and  JWCall,  for  the  defendants,  argued  that  the  will  authorized 
the  executors  to  retain  the  legacies  in  their  hands,  and  gave  thera  the  use 
of  the  fund  until  the  legatees  reached  raaturity ;  that  interest  is  a  mere 
equity,  and  formerly  was  not  charged  against  trustees,  except  where  they 
5^1  gp-]  made  it;  that  parol  evidence  is  admissible  in  this  case,  *to  rebut 
^  the  equity,  or  in  aid  of  a  doubtful  construction  of  the  will,  or  to 
repel  a  legal  inference ;  and  at  most,  that  by  the  terms  of  the  will,  the 
legacies  not  being  payable  until  the  legatees  arrive  to  twenty-one,  did 


*125]  COLUMBIA,    JANUARY,    1833.  89 

not  bear  interest  until  after  that  time.  They  cited  and  relied  on  the  fol- 
lowinj?  authorities  :  3  Bacon,  Tit.  Legacy  B.  446  ;  2  Bro.  Ch.  Rep.  500  ; 
1  Swinburne,  358;  Harp.  Rep.  42;  12  Yes.  386;  1  Eq.  Rep.  193;  G 
Yes.  324,  397  ;  7  lb.  228  ;  2  Fonb.  475  ;  Amb.  126  ;  2  John  Ch.  614  ; 
3  Yes.  1.3,  282;  4  lb.  1  ;  1  M'C.  Ch.  456  ;  2  Dallas,  171  ;  1  John.  Ch 
231 ;  2  Roper,  545-6  ;  3  John,  Ob.  369;  5  lb.  68 ;  Roberts  on  Frauds, 
10,  11. 

Williams,  contra. 

Harper,  J.  We  agree  with  the  presiding  Chancellor,  upon  the  effect 
of  the  bequest  in  the  residuary  clause  of  the  testator's  will.  It  would 
not  have  the  effect  of  giving  beneficially  to  the  executors,  the  interest  on 
the  legacies,  until  the  legatees  should  attain  the  age  of  twenty-one.  The 
case  of  Nichols  v.  Osborne,  is  sufficient  authority  for  this  purpose,  and 
there  are  many  others  to  the  same  effect.  The  case  is  stronger  against 
executors  in  this  country  than  in  England.  Under  our  statute  of  distri- 
butions, it  is  always  intended  that  the  executor  takes  as  a  trustee,  and 
not  for  himself,  unless  the  intention  to  give  him  beneficially,  be  plainly 
expressed.  The  bequest  of  the  residue  to  the  testator's  grand  daughters, 
gives  a  present  vested  legacy,  and  the  direction  that  it  shall  be  retained 
in  the  hands  of  the  executors  till  they  attain  the  age  of  twenty-one,  only 
fixes  the  time  of  payment.  It  is  debitum  in  iDresenti,  solvendum  in 
fiduro. 

We  agree  also,  with  the  Chancellor,  that  parol  evidence  was  inadmis- 
sible to  show  that  the  testator  intended  the  executors  to  take  this  inter- 
est. That  would  be  to  alter  and  add  to  the  will.  But  as  now  explained 
in  argument,  we  understand  the  parol  evidence  to  have  been  offered  for  a 
different  purpose — to  show  that  the  executors  did  in  fact  retain  the  lega- 
cies in  their  hands,  without  making  interest  on  them,  and  that  this  was  in 


consequence  *of  an  agreement  or  understanding  with  the  testator, 


[*126 


that  they  should  not  be  bound  to  invest  the  fund  or  make  interest, 
nor  be  chargeable  with  the  interest  upon  failure  to  do  so,  and  that  they 
accepted  the  executorship  on  that  condition.  For  this  purpose  we  think 
the  testimony  was  admissible.  It  was  not  to  add  to,  or  in  any  respect 
alter  the  terms  of  the  will,  but  to  excuse  themselves  for  having  failed  to 
make  interest.  This  Court  habitually  receives  evidence  to  show  that 
there  were  suits  depending  against  an  estate,  and  that  the  executor  re- 
tained funds  unemployed  in  his  hands,  to  meet  the  demands  which  might 
be  established,  to  excuse  him  from  the  payment  of  interest.  In  the  case 
of  Breure  ;;.  Pemberton,.  12  Yes.  386,  the  Court  refused  to  charge  an 
executor  with  interest,  on  the  ground  that  he  acted  fairly,  under^  the 
belief  that  the  balance  in  his  hands  belonged  to  himself  as  commissions, 
as  in  fact  it  would  have  done  if  he  had  charged  commissions  properly  in 
his  accounts  from  time  to  time.  If  the  defendants  in  this  case  did  have 
such  an  understanding  with  the  testator,  and  accepted  the  office  of  exec- 
utor upon  such  condition,  I  think  it  quite  as  good  an  excuse.  ^ 

The  charging  of  an  executor  with  interest  on  balances  in  his  hands,  is 
a  creature  of  this  Court,  and  it  is  by  comparatively  modern  decisions 
that  the  doctrine  has  been  fully  established.  But  it  is  a  general  rule  that 
parol  evidence  may  be  received,  to  rebut  an  equity.     The   distinction 


90  SOUTH   EQUITY   CAROLINA   REPORTS.  [*126 

between  receiving  parol  evidence  for  the  purpose  of  altering  or  explain- 
ing a  written  instrument,  and  for  the  purpose  of  rebutting  an  equity,  is 
very  fully  considered  in  the  case  of  Townsend  v.  Stangroom,  6  Yes.  828, 
and  Rich  v.  Jackson,  in  a  note  to  that  case.  The  first  was  a  bill  for  the 
specific  performance  of  a  contract  to  lease.  The  Chancellor  admitted 
parol  evidence  to  show,  that  the  intended  lessee  knew  at  the  time  of  the 
agreement,  that  part  of  the  lands  described  in  it  had  been  leased  to 
another  person.  He  could  not  execute  any  other  agreement  than  that 
which  the  parties  had  entered  into  ;  the  evidence  w^as  received  to  rebut 
an  equity — to  rebut  the  right  to  a  specific  performance,  and  on  it  the  bill 
*19*7'1  ^'^^  dismissed.  *0n  this  ground,  the  Court  will  not  execute  an 
-^  agreement  under  seal,  which  has  been  rescinded  by  parol.  Yet 
such  an  agreement  cannot  be  discharged  by  ])arol,  but  the  plaintiff's 
equity  is  rebutted.  In  Rich  v.  Jackson,  the  Chancellor  says  in  allusion 
to  the  cases  on  the  subject,  "  none  go  further  than  this,  in  the  decisions 
and  rules  laid  down ;  that  parol  evidence  of  the  conduct  of  the  parties, 
the  manner  of  conducting  the  transaction,  the  unfairness  and  hardship, 
may  afford  a  good  ground  to  leave  the  party  in  the  condition  in  which  he 
put  himself  at  law,  to  make  what  he  pleases  to  make  of  it,  but  ought  not 
to  make  this  Court  give  him  any  aid."  There  are  other  cases  proceeding 
on  the  same  principle  of  receiving  parol  evidence  to  rebut  an  equity ;  as 
to  rebut  the  presumption  that  an  executor  is  not  intended  to  take  the 
residue,  when  a  legacy  is  given  him,  &c.  If  in  consequence  of  such  an 
understanding  with  the  testator,  and  believing  that  the  will  provided  for 
their  doing  so,  the  defendants  were  induced  to  accept  the  office  of  execu- 
tor, and  retain  the  fund  in  their  hands  without  making  interest,  it  would 
be  a  case  of  great  unfairness  and  hardship  now  to  charge  them  with 
interest,  and  I  think  the  complainants,  volunteers  under  the  testator,  are 
not  entitled  to  the  aid  of  the  Court  for  that  purpose.  Of  course  I  can 
say  nothing  of  the  effect  of  the  testimony  Avhicli  is  to  be  produced.  But 
if  the  defendants  should  be  able  to  give  such  testimony  as  they  purpose, 
it  will  be  much  strengthened  by  the  terms  of  the  will,  which  seem  to  point 
to  such  an  understanding,  though  they  are  not  sufficient,  of  themselves, 
to  express  it.  Of  course  the  defendants  must  account  for  any  interest 
which  they  have  actually  made. 

With  respect  to  the  complainants'  ground  of  appeal,  nothing  appears 
but  what  is  stated  in  the  Commissioner's  report — the  simple  fact  that  the 
complainant,  J.  Y.  Thompson,  did  receive  from  the  defendants  the  sum 
of  $1087,  equal  to  the  principal  of  the  legacy,  and  give  a  receipt  in  full. 
It  is  said  that  a  receipt  may  be  contradicted  or  explained  by  parol  testi- 
mony, a  receipt  being  only  a  written  admission  of  a  previous  fact ;  and 
*1 9Q-1  if  the  fact  be  not  true,  the  *party  is  not  estopped  by  his  admis- 

""  -'  sion :  (see  the  cases  referred  to  in  the  American  edition  of  Philips' 
Ev.  74.)  A  receipt  is  certainly  evidence  against  a  party,  and  in  general 
conclusive  evidence.  But  supposing  that  a  mistake  may  be  shown,  I  am 
not  aware  that  any  has  been  shown  in  the  present  instance.  The  error 
or  mistake  is  supposed  to  have  been,  in  admitting  the  $1087  to  have  been 
in  full  of  the  legacy,  when  in  fact  he  was  entitled  to  interest  on  it  besides. 
That  is  a  matter  still  doubtful.  If  a  person  having  a  claim  against 
another,  thinks  proper  to  forgive  the  debt,  and  with  this  view  executes  a 
receipt,  this  will  bind  him.     It  is  a  gift  executed,  and  cannot  be  recalled. 


*128]  COLUMBIA,    JANUARY,    1833.  H 

So,  if  he  receive  part  of  his  demand,  and  give  a  receipt  for  the  whole. 
In  Martin  v.  Mowlin,  2  Burr.  979,  Lord  Mansfield  seems  to  take  for 
granted,  that  even  a  mortgage  debt  may  be  forgiven  by  parol  ;  and  in 
case  of  a  bond,  where  a  less  sum  than  the  bond  was  conditioned  for  had 
been  paid,  Chief  Justice  Marshall  said,  that  although  the  jury  were  satis- 
fied in  fact  that  it  was  not,  yet  in  law  they  ought  to  presume  that  it  was, 
fully  paid — 5  Cranch,  11.  The  case  seems  to  me  to  be  still  stronger 
where  there  is  something  certain  due,  and  there  is  a  doubt  whether  the 
creditor  may  not  be  entitled  to  something  more,  and  he  thinks  proper  to 
accept  what  is  certainly  due,  and  gives  a  receipt  in  full.  Such  appears 
to  be  the  present  case,  and  I  think  this  complainant  must  be  bound  by 
his  receipt.  With  respect  to  the  rest  of  the  complainants,  it  is  ordered, 
that  the  case  be  remanded  to  the  Circut  Court,  for  the  purpose  of  receiv- 
ing the  evidence,  and  being  heard  and  determined. 

O'Xeall,  J.,  concurred. 


*RoGER  LovELAND  and  KoBERT  WiLSGN  V.  James  Mansell  and  r^i29 
Samuel  Reid,  Sheriff.  *- 

A  tract  of  land  being  under  levy,  the  defendant  (in  this  case)  had  agreed  with  the 
debtor  and  creditor  to  purchase  it  at  a  fair  price,  and  the  sheriff  was  instructed 
not  to  sell ;  and  in  consequence  of  this  agreement  neither  creditor  nor  debtor 
attended  on  sale  day,  and  the  land  was  sold  by  the  sheriff  and  purchabed  by  this 
defendant  at  an  undervalue,  whereby  the  debt  was  endangered:  on  a  bill  filed  for 
this  purpose,  the  sale  was  set  aside.  [*131] 

The  bill  states  that  the  plaintiff  Wilson,  being  indebted  to  the  plaintiff 
Lovelaud  and  others,  a  tract  of  land  belonging  to  him  in  Pickens 
District,  of  250  acres,  was  levied  on  by  virtue  of  Loveland's  execution, 
and  advertised  for  sale  on  the  first  Monday  in  July,  1829  ;  that  pending 
the  levy,  the  plaintiffs  made  a  contract  for  the  sale  of  the  land  to  the 
defendant  Mansell,  for  $500  ;  and  the  sheriff,  Reid  was  directed  not  to 
sell  in  July,  but  to  continue  the  advertisement  after  that,  and  not  to  sell 
unless  Lovelaud  or  his  agent  was  present.  That  on  the  sale  day,  in 
August,  Wilson  attended  at  Anderson  Court  House,  according  to  an 
understanding  with  Mansell,  in  order  to  remove  some  difficulties  in  the 
title  to  the  land,  which  was  soon  after  to  have  been  executed.  That,  not- 
withstanding the  instructions  to  the  sheriff,  and  in  the  absence  of  the 
plaintiffs,  the  land  was  sold  by  the  sheriff  on  that  day,  and  purchased  ))y 
Mansell  for  $131.  The  bill  avers  that  Loveland's  debt  is  endangered  by 
the  sacrifice  of  the  land,  and  prays  that  the  sheriff's  sale  may  be  set 
aside,  and  the  contract  of  sale  with  Mansell  specifically  enforced. 

The  answer  of  Mansell  admits  the  purchase  at  sheriff's  sale,  and  his 
parol  agreement  to  purchase  the  250  acres  at  $500  ;  but  alleges  that  this 
agreement  was  made  in  consideration  of  a  mill-tract  of  80  acres,  which 
he  had  purchased  of  Wilson  and  received  titles  for,  but  which  he  had 
failed  to  record,  should  be  exempt  from  the  lien  of  Loveland's  execution, 
which,  although  junior  to  the  title,  had  been  levied  on  this  tract.     That, 


92  SOUTH   CAROLINA   EQUITY   REPORTS.  [*129 

being  surprised  to  learn  that  his  tract  of  80  acres  was  advertised  for 
sale,  and  no  tender  of  titles  for  the  250  acres  being  made,  he  was  induced 
to  believe  that  the  plaintiffs  did  not  intend  to  perform  their  contract ; 
and  that  his  tract  of  80  acres  was  actually  sold  under  Loveland's  execu- 
tion, on  the  sale  day  in  September  following.  He  denies  that  he  knew  of  any 
^,  „, ■]  instructions  to  the  sheriff,  Reid,  or  that  he  had  any  *comraunication 
-J  or  acquaintance  with  him  until  after  the  sale  of  the  250  acres. 

The  Sheriff,  in  his  answer,  admits  the  levy  and  advertisement  as  stated 
in  the  bill ;  and  that  he  was  directed  not  to  sell  in  July,  unless  Loveland 
or  his  agent  was  present.  That,  receiving  no  further  instructions,  and 
not  knowing  of  any  arrangement  between  the  parties,  he  sold  in  August. 
He  had  no  communication  or  acquaintance  with  Mansell  until  after  that 
sale. 

The  case  came  to  trial  at  Pickens,  July,  1832,  and  the  following  facts 
appeared  in  evidence  : 

In  tlie  year  1829,  the  land  of  Wilson  being  then  under  levy  of  Love- 
land's  execution,  and  Mansell  being  apprehensive  that  a  tract  of  80 
acres  which  he  had  bought,  was  also  subject  to  the  lien  of  this  execution  ; 
it  was  agreed  between  Mansell,  Loveland  and  Wilson,  (by  his  agent 
Dunham)  that  Mansell  was  to  give  his  note  to  Loveland  for  $500,  when 
a  good  unincumbered  title  was  made  to  him,  and  that  Loveland  should 
satisfy  his  execution.  Dunham,  the  agent  of  Wilson,  also  held  another 
junior  execution  against  him  ;  and  it  was  then  agreed  that  Dunham 
should  attend  at  Anderson,  on  the  sale  day  in  August,  and  effect  a  sale 
of  Wilson's  property  to  satisfy  his  execution,  and  thus  disencumber  the 
land,  so  as  to  leave  the  agreement  in  relation  to  it,  to  be  executed  In 
order  that  the  agreement  might  be  carried  into  effect,  Loveland  wrote  a 
letter  to  the  sheriff,  Reid,  stating  that  an  arrangement  had  been  made 
concerning  the  land,  and  directing  him  not  to  sell  it,  but  to  continue  the 
advertisement.  This  letter  was  read  to  Mansell,  and  afterwards  sent  to 
the  sheriff,  before  sale  day.  On  the  Saturday  previous  to  the  sale  day  in 
August,  Wilson,  Mansell  and  Dunham  being  present  together,  Wilson 
stated  that  there  was  property  levied  on  and  to  be  sold  at  Anderson  on 
next  Monday,  suflBcient  to  satisfy  Dunham's  execution,  for  which  purpose 
they  would  attend  at  Anderson,  and  that  Mansell  should  get  titles  to  the 
land  the  next  week ;  and  so  it  was  agreed.  Wilson  and  Dunham 
accordingly  attended  at  Anderson  Court  House,  and  had  Wilson's  execu- 
*1311  ^^^^^  satisfied.  Mansell  being  advised,  as  it  seems,  by  a  *message 
-^  from  some  one,  through  his  son,  that  his  land  was  to  be  sold, 
attended  Pickens  on  the  sale  day  in  August,  when  the  sheriff,  either 
having  forgotten  the  letter  or  misconstruing  its  contents,  exposed  the 
land  to  sale,  and  it  was  purchased  by  Mansell  at  $131.  Mansell  on  this 
occasion,  forbid  the  sale  of  the  eighty-dollar-acre  tract.  It  was  sold  on  the 
sale  day  in  September  following,  by  the  order  of  Dunham.  Mansell  did  not 
apprise  the  sheriff  of  the  arrangement  with  Wilson  and  Loveland,  but 
he  told  others,  both  before  and  at  the  sale,  that  he  had  contracted  for  the 
land  ;  and  the  Sheriff  testified  that  if  he  had  been  apprised  of  the 
arrangement,  he  would  not  have  sold.  Dunham  procured  a  title  deed 
from  Wilson  to  Mansell,  on  the  Tuesday  after  sale  day,  but  on  hearing 
of  the  purchase  at  sheriff's  sale,  did  not  tender  it  immediately,  nor  for  a 
month  or  two  after,  when  Mansell  refused  to  accept  it. 


*131]  COLUMBIA,    JANUARY,    1833.  93 

Johnston,  Chancellor.  I  have  come  to  the  conclusion  that  the  plain- 
tiffs are  entitled  to  a  decree. 

I  do  not  think  they  are  entitled  to  a  specific  performance  of  the  con- 
tract alleged  in  the  bill,  and  proved  on  the  trial :  the  statute  of  fraud 
stands  in  their  way,  and  there  has  not  been  proved  such  performance  as 
to  take  the  case  out  of  it.  But  it  will  not  be  permitted  to  the  defendant 
Mausell,  to  take  advantage  of  an  absence  of  the  parties  interested,  pro- 
duced by  his  bargain,  to  violate  that  bargain  to  their  injury. 

The  testimony  of  Dunham  and  Osborne,  shows  that  he  knew  that  the 
sheriff  was  instructed  by  letter  to  stispend  the  sale.  The  testimony  of 
Dunham,  Holcombe,  Osborne  and  Hunter,  shows  that  he  had  agreed  to 
purchase  the  larger  tract,  and  the  terms  of  the  contract ;  Dunham  and 
Holcombe  show  that  he  knew  that  in  consequence  of  the  bargain  he  had 
made,  Dunham  and  Wilson  would  be  at  Anderson,  and  of  course  absent 
from  Pickens  on  the  sale  day  in  August.  Now  grant  that  the  sheriff  had 
not  received  the  letter,  or  misconstrued  it,  and  that  in  consequence  of 
this,  he,  by  a  mistake  on  his  part,  and  in  perfect  innocence,  put  up  the 
land  for  sale  ;  did  not  Mansell  *know  his  bargain?  did  he  not  r^io9 
know  that  Wilson  and  Dunham,  on  account  of  that  very  bargain,  ^  '^"' 
were  absent  ?  Did  he  not  know  that  but  the  Saturday  before  he  had  told 
two  substantial  men  at  least,  if  not  others,  that  he  had  bought,  and  thus, 
by  possibility  prevented  their  attendance  as  competitors  at  the  sale  ? 
Under  these  circumstances  did  he  ask  tlie  sheriff  why  he  proceeded  to 
sell  ?  Did  he  ask  him  if  he  had  received  the  letter  ?  Did  he  tell  him 
of  the  bargain,  which,  as  he  answers,  would  have  effectually  stopped  the 
sale  ?  Was  he  at  liberty  to  withhold  this  information,  and  become  a 
purchaser  ?  He  told  othera  at  the  sale,  and  just  before  it,  that  he  had 
contracted  for  the  land,  a  thing  very  well  calculated  to  prevent  them  from 
bidding  against  him  ;  but  said  nothing  to  the  sheriff  to  prevent  the  sale 
itself  When  he  forbid  the  sale  of  the  eighty  acres,  why  did  he  keep  his 
mouth  shut  upon  these  other  matters  ?  A  word  from  him  would  have 
been  sufficient ;  and  if  it  had  not,  he  would  have  been  free  from  blame. 
But  he  did  not  utter  a  word. 

It  is  said  he  was  under  an  impression  that  a  trick  was  intended  by  the 
other  parties.  This  may  be  so.  But  from  the  evidence,  we  see  nothing 
to  justify  his  suspicions.  There  appears  but  little  ground  for  his  taking 
up  such  suspicions,  from  what  his  son  told  him  the  evening  before  the 
sale.  He  told  him  his  land  (the  eighty  acres)  was  to  be  sold.  He  knew 
before  that  it  was  levied  on  and  advertised. 

But  if  he  did  entertain  such  suspicions,  if  they  were  excited  for  the 
first  time  by  what  his  son  told  him,  was  he  at  liberty  to  proceed  upon 
mere  suspicion,  in  a  way  which  would  work  a  fraud  ui)on  others,  if  his 
suspicions  turned  out,  as  they  have  turned  out,  to  be  groundless  ?  Ouglit 
he  not  to  have  inquired  of  the  sheriff?  Ought  he  not  to  have  informed 
him  of  the  real  state  of  the  facts  ?  If  he  had  done  this  he  wouhi  have 
discharged  his  duty.  He  would  not  have  been  liable  to  the  imputation 
of  an  improper  suppression  of  the  truth.  And  he  would  have  stood 
justified  in  purchasing. 

There  is  one  point  of  some  difficulty,  in  the  way  of  *the  plain-  r^^gg 
tiffs.     The  deed  was  not  tendered  to  Mansell  until  after  the  smaller  ^ 
tract  had  been  sold.     On  reflection,  I  am  under  the  impression  this  can- 


94  SOUTH   CAROLINA   EQUITY   REPORTS.  [*133 

not  avail  Mausell  If  the  plaintiffs  had  insisted  only  on  a  specific  per- 
formance of  the  bargain  (putting  the  statute  out  of  the  question)  the 
tender  of  the  land  would  have  been  indispensable.  But  as  they  go  also 
for  setting  the  sale  aside,  and  of  course  in  that  point  of  view,  do  not 
claim  the  benefit  of  the  bargain,  I  think  they  are  entitled  to  it,  without 
tendering  the  deed  as  a  pre-requisite  condition. 

There  is  another  matter  in  the  w^ay  of  the  plaintiff  Loveland.  It  is 
insisted  that  the  sale  of  the  eighty  acres  was  a  w^aiver  of  his  rights  under 
the  bargain,  or  arising  in  consequence  of  it.  But  he  did  not  order  that 
sale,  and  there  is  no  evidence  that  Dunham  had  any  authority  from  him 
to  order  it.     He  is  not,  therefore,  to  be  injured  by  it. 

I  think  Loveland  is  entitled  to  relief,  by  having  the  sale  of  the  two 
hundred  and  fifty  acres  sfct  aside.  As  things  stand,  the  sale  was  a  fraud 
on  him,  and  as  Wilson  is  insolvent,  he  will  be  without  redress  unless  the 
sale  be  avoided.  To  this  Man  sell  can  have  no  just  objection,  if  his  money 
be  refunded  with  interest.  I  will  not  set  aside  the  sale  of  the  smaller 
tract,  but  will  order  the  sum  which  it  cost  Mansell,  in  consequence  of  its 
sale  by  the  sheriff,  to  be  refunded  him  out  of  the  proceeds  of  the  re-sale 
of  the  larger  tract,  if  so  much  remain  after  satisfying  Loveland's  execu- 
tion. 

It  is  decreed  that  upon  the  plaintiff  Loveland's  paying  or  tendering  to 
the  defendant,  Mansell,  within  two  months  from  this  time  (or  within  two 
months  after  the  final  decision  of  this  case,  in  the  Court  of  Appeals,  if  an 
appeal  be  taken)  the  amount  which  he  paid  at  the  sheriff's  sale  for  the 
large  tract  described  in  the  pleadings,  together  with  the  costs  of  the 
sheriff's  deed,  and  interest  on  those  sums  from  the  time  he  paid  them,  to 
be  ascertained  by  the  Commissioner,  the  sale  thereof  to  him  by  the 
sheriff,  and  his  title  thereunder,  be  set  aside  :  and  that  the  sheriff  of 
*i^n  r*ickens  do  thereupon  proceed  to  duly  advertise  and  sell  the  *said 
J  tract  of  land  under  the  execution  of  Loveland  ;  and  that  if  from  the 
proceeds  thereof,  enough  remains  after  satisfying  such  execution,  to  repay 
to  the  defendant  Mansell,  the  sum  which  he  has  been  obliged  to  pay  in 
consequence  of  the  sale  by  the  sheriff,  of  the  smaller  tract  (including 
costs  of  conveyance)  with  interest  thereon,  to  be  ascertained  by  the  Com- 
missioner, the  same  be  paid  over  to  him  ;  otherwise,  that  it  be  paid  to 
him  by  the  plaintiff  Wilson,  for  which  this  is  to  be  considered  as  a 
decree.     The  defendant  Mansell  to  pay  the  costs  of  the  suit. 

But  if  the  plaintiff  Loveland  shall  not  within  the  time  above  prescribed, 
pay  or  tender  to  the  defendant  the  sums  above  prescribed,  as  a  pre- 
requisite for  setting  aside  the  sale  of  the  larger  ti-act ;  in  that  case  it  is 
decreed  that  the  bill  stand  dismissed  with  costs,  to  be  paid  by  the  plain- 
tiffs. 

From  this  decree  the  defendant  Mansell  appealed. 

Burt,  for  the  appellant. 
J.  N.  WJntner,  contra. 

Per  Curiam.  We  concur  in  the  views  taken  of  this  cause  by  the 
Chancellor,  for  the  very  satisfactory  reasons  contained  in  his  decree.  It 
is  therefore  affirmed,  and  the  appeal  ordered  to  be  dismissed. 


CASES    IN   CHANCERY 

ARGUED     AND     DETERMINED     IN     THE 

COURT  OF  APPEALS  OF   SOUTH  CAROLIM. 

(C^arltston— ^pnl,  1833. 


JUDGES  PRESENT. 


Hon.  DAYID  JOHNSON,  Presiding  Judge. 
Hon.  J.  B.  O'NEALL.      \     Hon.  WILLIAM  HARPER. 


James  R.  Pringle  and  others,  Trustees  of  Mrs.  Cleary,  vs.  William 

Allen. 

Where  a  settlement  of  certain  negroes  was  made  to  the  use  of  husband  and  wife 
during  their  joint  lives,  and  to  the  use  of  the  survitor,  with  a  limitation  over; 
it  was  held,  that  upon  the  death  of  the  husband,  a  legal  estate  vested  in  the  wife 
for  life,  which  was  subject  to  levy  and  sale  under  execution;  but  that  the  pur- 
chaser at  sheriff's  sale,  should  before  delivery,  give  bond  and  security  for  the 
forthcoming  of  the  property  on  the  termination  of  the  life  estate.  [*137] 

The  defendant,  William  Allen,  recovered  a  judgment  against  N.  Gr. 
Cleary,  sued  out  Siji.fa.,  and  delivered  it  to  the  sheriff  of  Colleton  Dis- 
trict, who  seized  two  negroes,  and  was  about  to  sell  them  to  satisfy  the 
debt,  when  the  trustees  of  Mrs.  Cleary  filed  this  bill  for  an  injunc- 
tion*— alleging  that  the  negroes  belonged  to  the  trustees  The  r*23g 
defendant  answered,  denying  the  equity,  and  insisting  that  one  of 
the  negroes  was  not  connected  with  the  trust  at  all,  and  that  the  life 
estate  of  Mrs.  Cleary  in  the  other  was  liable  to  seizure  and  sale. 

At  the  hearing,  it  appeared  that  one  of  the  negroes  was  not  in  the  set- 
tlement ;  and  the  injunction  as  to  that  slave  was  dissolved.  As  to  the 
other  slave,  it  appeared  that  she  was  subject  to  a  trust  of  a  settlement, 
whereby  a  large  number  of  negroes  were  conveyed  to  trustees,  for  the  use 
of  Samuel  C.  Graves  and  Susan  M'Pherson,  his  intended  wife,  now  Mrs. 
Cleary,  during  their  joint  lives,  and  to  the  use  of  the  survivor  for  life— 
and  after  the  decease  of  the  survivor,  to  the  issue  of  the  marriage. 
Samuel  C.  Graves  died,  leaving  issue,  and  the  negroes  never  were  lu  the 
possession  of  the  trustees. 

The  Chancellor  continued  the  injunction  as  to  these  negroes,  and 


96  SOUTH   CAROLINA   EQUITY   REPORTS.  [*136 

ordered  that  the  plaintiff's  debt  should  be  paid  out  of  the  income,  and  if 
not  paid  by  January  following,  that  a  receiver  should  be  appointed. 
From  this  decree  the  defendant  appeals,  and  insists  : 

1.  That  a  life  estate  in  negroes  is  liable  to  execution  at  law,  and  that 
it  makes  no  difference  whether  the  same  be  created  by  deed  or  will. 

2.  That  the  Court  does  not  sit  to  force  upon  a  creditor  who  has  a  right 
to  a  common  law  execution,  the  unwelcome  and  inadequate  process  of  this 
Court,  for  the  attainment  of  the  same  object. 

Johnson,  J.  Upon  looking  into  the  case  of  Dr.  Francis  Porcher  v. 
Sarah  B.  Gist,  decided  here  at  the  last  sittings,  I  find  that  this  case  runs 
all  fours  with  it.  There,  as  in  this,  the  settlement  was  to  the  joint  use  of 
the  intended  husband  and  wife  for  life,  then  to  the  use  of  the  survivor  for 
life,  and  on  the  death  of  the  survivor,  to  the  use  of  the  issue  of  the  mar- 
riage ;  and  it  was  held  that  upon  the  death  of  the  husband,  a  legal  estate 
vested  in  the  wife  for  life,  which  was  liable  to  be  levied  on,  and  sold 
under  ^. /a.  against  the  wife.  The  decree  of  the  ^Circuit  Court 
-•  must,  therefore,  be  reversed,  and  the  injunction  set  aside  and  dis- 
solved, and  it  is  so  adjudged  and  decreed. 

In  Cordes  and  Adrian, (a)  decided  during  the  present  sitting,  an  order 
was  made  in  the  Circuit  Court,  that  the  purchaser,  at  sheriff  sale,  of  a 
life  estate  in  slaves,  should  give  bond  and  security  that  they  should  not 
be  carried  out  of  the  State,  and  that  they  should  be  forthcoming  at  the 
termination  of  the  life  estate  ;  and  without  some  security  of  this  sort,  it 
is  apparent  that  the  interest  of  those  entitled  in  remainder  would  be 
jeopardized,  particularly  on  sales  by  the  sheriff,  who  must  sell  to  the 
highest  bidder,  whatever  may  be  his  character  or  responsibility.  It  is, 
therefore,  so  reasonable  and  necessary,  that  we  think  it  should  be  provi- 
ded for,  in  every  case.  It  is  therefore  ordered  and  decreed,  that  upon  the 
sale  of  the  negroes  taken  in  execution,  at  the  suit  of  the  defendant, 
Allen,  the  purchaser  shall,  before  delivery,  enter  into  bond  to  the  Com- 
missioner of  the  Court,  with  good  and  sufficient  security,  to  be  approved 
by  the  Commissioner,  in  an  amount  equal  to  double  the  value  of  the 
negro  or  negroes,  conditioned  that  the  said  negro  or  negroes  shall  not  be 
carried  or  removed  out  of  the  State,  and  that  they,  if  alive,  with  the 
increase  of  the  females,  shall  be  forthcoming  at  the  termination  of  Mrs, 
Cleary's  life  estate — costs  to  be  paid  out  of  the  sales. 

O'NEALLand  Eakle,  Js.(6)  concurred. 


*138]  *JoHN  J.  Green  vs.  A.  Alexander  and  others. 

Where  a  debtor  had;  been  arrested  under  a  ca.  sa.  and  admitted  to  the  benefit  of  the 
Prison  Bound's  Act,  from  wlience  he  made  his  escape;  Held,  that  the  plaintiff 
might  afterwards  take  out  afi.fa.  [*138] 

Bill  for  injunction. 

On  the  23d  of  April,  1824,  the  defendant  obtained  a  judgment  against 

^)    Vide  post. 

(b)  Hakper,  J.,  being  absent  during  a  part  of  this  Term,  Mr.  Justice  Earle  sat 
in  his  place. 


*138] 


CHARLESTON,    APRIL,    1833.  97 


the  plaintiff,  upon  which  a  fi.  fa.  was  issued,  and  subsequently  a  capiat 
ad.  satisfaciendum ;  under  the  latter,  the  plaintiff  was  arrested,  and 
having  given  the  necessary  security,  was  admitted  to  the  benefit  of  the 
prison  bounds.  After  remaining  for  some  time  in  the  bounds,  the  plain- 
tiff broke  them,  and  went  at  large.  Some  time  in  1832,  the  defendant, 
under  an  alias  fi.  fa.,  levied  upon  the  real  estate  of  the  plaintiff,  and 
advertised  the  same  for  sale,  to  prevent  which,  the  present  bill  was 
filed. 

The  cause  was  heard  at  Georgetown,  before  Chancellor  Johnston, 
Spring  Term,  1832,  who  dismissed  the  bill. 

From  this  decree  the  plaintiff  appealed. 

1.  Because  the  arrest  under  the  ca.  sa.  at  law,  exempted  the  property 
of  the  defendant  (in  the  execution)  from  levy. 

2.  Because  the  defendant  (the  present  plaintiff)  having  been  arrested 
by  a  ca.  sa.,  and  made  an  escape,  the  plaintiff  (at  law)  should  have  pro- 
ceeded under  the  act  of  the  legislature,  either  to  retake  the  body,  or  to 
sue  on  the  bond. 

Cohen,  for  the  appellant,  cited  P.  L.  45t,  sec.  11 ;  Mairs  v.  Smith,  3 
M'C.  52  ;  Cohen  v.  Greer,  4  M'C.  509.     2  Bay,  395. 

DunTcin,  contra,  cited  2  Bac.  Ab.  tit.  Exon.  Y19;  Tit.  Escape,  C.  ; 
Cro.  Car.  240;  Stat.  8  &  9  Wm.  8,  P.  L.  App.  15,  16,  129. 

Johnson,  J.      By  the  statute  of  8  &  9  Wm.  3,  P.  L.  Appendix,  15, 
16,  which  is  made  of  force  in  this  State,  it  is  provided  that  if  any  person, 
taken  in  execution  and  committed  to  prison,  shall  escape  from  it  by  any 
means  whatever,  the  creditor  or  creditors  at  whose  suit  such  prisoner  was 
charged  in  execution,  at  the  time  of  his  escape,  *shall  or  may  re-  j-^-.  qq 
take  such  prisoner,  by  any  new  capias  ad  satisfaciendum,  or  sue  ^ 
forth  any  other  kind  of  execution,  as  if  the  body  of  such  prisoner  had 
never  been  taken  in  execution  ;  so  that  if  the  complainant  had  actually 
escaped  from  the  prison,  the  case  would  have  been  precisely  that  provided 
for  by  the  statute.     He  had,  however,  been  admitted  to  the  prison  rules, 
on  giving  bond  conformably  to  the  act  usually  called  the  prison  bounds' 
act ;  and  the  question  is,  whether,  having  escaped  from  the  prison  rules, 
the  provisions  of  the  statute  apply.     The  confinement  of  a  party  in  exe- 
cution to  the  prison  rules,  is  a  restraint  upon  his  personal  liberty,  and  is 
but  a  mitigated  form  of  imprisonment,  and  that  idea  is  clearly  expressed 
in  the  preamble  to  the  prison  bounds'  act,  (P.  L.  456,)  wherein  it  is  reci- 
ted, "that  humanity  requires  that  the  confinement  of  persons  on  civil 
process  should  be  less  rigorous  than  heretofore  ;"  and  the  remedy  provi- 
ded, is,  that  upon  giving  security  to  the  sheriff,  that  he  will  nofgo  with- 
out certain  prescribed  bounds,  he  shall  not  be  confined  within  the  walls 
of  the  prison  ;  indeed  all  the  provisions  of  the  act  tend  to  show,  that  he 
is  considered  as  being  in  confinement  and  in  the  custody  of  the  law. 
Thus  if  he  fail  to  render  a  schedule  of  his  effects  agreeably  to  the  tenor 
of  his  bond ;  if  he  be  seen  without  the  prison  rules  ;  if  he  shall  have 
spent  more  than  two  shillings  and  six  pence  per  day,  or  shall  have  fraud- 


Qucbre.— Ought  not  the  fact  of  the  escape  to  be  ascertained  in  some  judicial  form 
before  the  issuing  of  the  j?.  fa.t     See  Aiken  v.  Moore,  1  Hill's  Kep.  432. 
YOL.  I.— 7 


98  SOUTH    CAROLINA    EQUITY    REPORTS.  [*139 

ulently  sold,  conveyed,  or  assigned  liis  estate  ;  he  shall  not  be  any  longer 
entitled  to  the  rules.  He  is  then  in  confinement,  and  the  prison  rules 
instead  of  the  walls  constitute  his  prison,  and  if  he  escape  therefrom,  it 
is  an  escape  from  prison  within  the  meaning  of  the  statute. 

The  second  ground  of  the  motion,  assumes  that  the  plaintiff  is  entitled 
to  no  other  remedy  than  that  provided  by  the  prison  bounds'  act — to  pro- 
ceed to  retake  him,  or  against  his  securities  for  the  bounds,  or  if  they  be 
insufficient,  against  the  sheriff. 

There  is  no  clause  in  the  act  repealing  the  statute,  nor  is  there  any 
repugnance  which  would  operate  as  a  virtual  repeal ;  on  the  contrary, 
they  are  entirely  consistent :  according  to  the  statute,  if  one  in  execution 
*i  ml  escape  from  prison,  the  plaintiff*  may  retake  him  by  a  new  capias, 
J  or  sue  out  any  other  form  of  execution ;  according  to  the  act,  he 
may  retake  him,  or  sue  the  sureties,  or  the  sheriff.  The  one  (the  statute) 
providing  a  general  remedy,  the  other  (the  act)  providing  for  the  partic- 
ular case,  and  both  must  stand. 

We  therefore  concur  with  the  Chancellor,  and  his  decree  is  affirmed. 

O'Neall,  J.,  concurred. 
Harper,  J.,  absent. 


Ex  Parte,  John  Smith,  in  the  matter  of  the  executors  of  Bradshaw. 

The  Court  of  Chancery  may  order  the  funds  of  an  infant  under  its  control,  to  be 
paid  to  a  guardian  residing  and  appointed  in  another  State,  but  in  doing  so,  will 
take  every  precaution  to  guard  against  abuse  and  loss  to  the  infant:  the  Court 
will,  in  such  case,  order  a  reference  to  ascertain  the  fact  of  the  guardian's 
appointment,  his  fitness  and  whether  sufficient  security  has  been  given.  [*141] 

James  Bradshaw  died  in  1828,  having  previously  made  his  will, 
bequeathing  his  property  to  his  two  minor  children,  about  the  ages  of 
eight  and  five  years.  Geo.  W.  Egleston  and  P.  G.  Gerard  were  appoin- 
ted executors.  They  qualified  and  sold  the  property,  paid  the  debts  and 
invested  the  proceeds  under  the  order  of  this  Court,  in  stock. 

Mrs.  Bradshaw  died  before  her  husband.  The  children  reside  with 
their  maternal  grandfather,  John  Smith  of  New  York.  He  was  appoin- 
ted by  the  Surrogate  of  New  York  guardian  of  these  children,  and  gave 
bond  and  security  for  the  discharge  of  his  duties. 

The  executors  have  always  paid  him  the  dividends  on  the  stock,  and 
he  has  recently  applied  to  them,  to  transfer  the  property  to  him  as  guar- 
dian. 

The  executors  admit  the  facts  stated  in  the  petition,  and  are  perfectly 

willing  to  transfer  the  estate  if  they  can  receive  the  sanction  of  the  Court ; 

but   they  are   not  willing  to  transfer   the   property  to  a  guardian  not 

*  14.11  ^PPoi^tcd  in  *this  State,  without  such  sanction,  and  this  petition 

-'  was  accordingly  filed  to  obtain  it. 

Chancellor  Johnston  dismissed  the  petition — and  a  motion  is  now  sub- 
mitted to  reverse  the  decision,  on  the  ground  that  the  petitioner  having 
been  appointed  guardian  of  the  legatees,  in  the  city  of  New  York,  how 


*141]  CHARLESTON,    APRIL,    1833.  99 

the  place  of  their  clomicil,  was  entitled  to  receive  the  estate  of  the  minors 
and  the  prayer  of  the  petition  should  have  been  granted. 

Dunkin,  for  the  petitioner. 

Harper,  J.  I  have  no  doubt  on  principle  and  the  practice  of  the 
Court  of  Chancery,  of  the  competency  of  the  Court  to  order  funds  of  an 
infant  under  its  control,  to  be  paid  to  a  guardian  appointed  and  residing 
in  another  State.  This  must  often  be  a  matter  of  almost  absolute 
necessity,  but  is  subject  to  the  direction  of  the  Court.  It  has  been  held, 
that  where  no  administration  had  been  granted  in  the  State,  a  debtor  of 
an  intestate,  making  payment  bona  fide  to  an  administrator,  appointed  in 
another  State  where  the  intestate  was  domiciliated  at  the  time  of  his 
death,  was  discharged.  The  executors  might  perhaps  have  been  justified 
in  paying  over  to  the  guardian,  on  their  own  responsibility.  With 
respect  to  the  infants,  however,  they  are  trustees,  and  it  was  proper  that 
they  should  take  the  direction  of  the  Court. 

In  making  such  an  order,  the  Court  will  take  every  precaution  to  guard 
against  abuse  and  loss  to  the  infants.  There  must  be  a  reference,  not 
only  to  ascertain  the  fact  of  the  guardian's  having  been  regularly 
appointed,  according  to  the  laws  of  the  State  in  which  he  and  the  ward 
reside,  but  his  fitness  for  the  appointment ;  and  whether  sufficient  security 
has  been  given. 

The  order  dismissing  the  petition  is,  therefore,  reversed,  and  a  reference 
ordered  accordingly. 

Johnson  and  O'JSTeall,  Js.,  concurred. 


*Fripp  us.  Talbird.  r*14'> 

A  deed  or  marriage  settlement  which  is  good  between  the  parties,  but  void  as  to 
creditors  for  the  want  of  a  schedule,  or  for  not  being  recorded,  is  nevertheless 
valid  as  to  creditors  until  they  choose  to  avoid  it  bj^  seizing  the  property,  and  the 
party  in  possession  under  it  will  not  be  bound  to  account  for  rents  and  profits 
during  the  time  such  deed  was  regarded  as  valid.  [*143] 

A  wife,  being  entitled  to  a  life  estate  in  certain  negroes,  bad  them  settled  to  her 
separate  use  by  marriage  settlement  which  had  no  schedule  annexed  and  was 
not  recorded;  the  husband  died,  the  wife  surviving,  who  administered  on  his 
estate,  received  her  portion  of  it,  married  a  second  time,  and  died:  on  a  bill  filed 
by  the  creditors  of  the  first  husband  against  the  second  husband,  it  was  held, 
that  the  life  estate  of  the  wife  in  the  negroes,  was  not  assets  for  the  payment  of 
the  debts  of  her  first  husband,  and  his  "creditors  were  not  entitled  to  au  account 
for  their  possession  by  the  wife  after  the  death  of  her  first  husband.  [*143] 

Creditors  may  follow  assets  in  the  hands  of  legatees  or  distributees  and  compel 
them  to  refund:  and  the  property  may  be  followed  in  the  hands  of  one  to  whom 
it  has  been  transmitted  on  the  death  of  a  legatee  or  distributee;  there  is  no  limit 
to  this  right  except  that  of  time.  [*144] 

Mary  Bell,  under  her  father's  will,  was  entitled  to  a  number  of  negroes 
for  life.  She  married  William  Palmer,  and  the  negroes  were  settled  to 
her  use,  but  there  was  no  schedule  annexed  to  the  deed,  and  the  deed 
was  not  recorded.     Palmer  and  Isaac  Perry  Fripp,  joined  one  William 


100  SOUTH   CAROLINA   EQUITY   REPORTS.  [*142 

Barns,  as  his  sureties  in  two  administration  bonds  on  the  estates  of 
Richard  and  Sarah  Reynolds.  In  November,  1817,  Pahner  died — his 
widow  administered — she  sold  his  estate  in  1818,  and  nine  negroes  were 
bought  in,  and  retained  by  her.  The  next  of  kin  bought  to  the  amount 
of  his  share,  and  gave  an  indemnity  bond.  The  debts  of  Palmer  were 
not  then  paid.  In  1822  she  married  John  Talbird,  who  acquired  in  her 
right  the  nine  negroes  above  mentioned,  and  also  those  bequeathed  by 
her  f^ither.  She  died  in  1825,  and  administration  of  her  estate  and  also 
of  her  first  husband's,  was  granted  to  John  Talbird. 

"William  Barns  committed  a  devastavit — and  died  in  November,  1821, 
leaving  John  Barns  his  executor.  Administration  de  bonis  non,  of  the 
estates  of  Reynolds,  was  committed  to  Robert  Oswald,  and  on  a  bill 
filed  by  him  against  John  Barns,  executor  of  William  Barns,  a  decree 
was  given  against  Barns  for  $6,669  50.  Oswald  sued  on  the  administra- 
tion bonds  against  Fripp,  and  he  was  compelled  to  pay  $5,454  66 ;  he 
died,  having  appointed  the  plaintiff  his  executor. 

The  bill  is  filed  by  Perry  Fripp,  executor  of  Isaac  Perry  Fripp, 
against  Talbird,  as  administrator  of  William  and  Mary  Palmer,  for  au 
account  of  their  estates,  and  contribution  ;  and  against  John  Barns,  for  an 
account  of  the  estate  of  William  Barns. 

The  Court  ordered  a  reference,  and  the  Commissioner  at  Coosawhatchie 
took  an  account,  in  which  he  charged  Talbird  with  the  nine  negroes  of 
Palmer  that  came  to  his  hands,  and  with  their  hire  ;  also  with  the  hire  of 
the  negroes  which  his  wife  held  under  her  father's  will  and  the  settlement, 
as  well  before  his  marriage  with  Mary  Palmer  as  afterwards. 
*1 1'^l  *The  Court  confirmed  the  report ;  from  the  decree,  as  contained 
^-^  in  the  order  of  reference  and  confirmation,  the  defendant  Talbird 
appeals — because, 

1.  He  is  not  liable  for  any  debts  contracted  by  his  wife,  before  mar- 
riage ;  no  decree  having  been  obtained  against  him  in  her  life  time. 

2.  The  negroes  that  came  to  his  hands  by  virtue  of  his  marriage  with 
Mary  Palmer,  are  not  assets  to  pay  the  debts  of  Palmer. 

3.  The  creditors  of  Palmer  could  not  have  an  account  of  antecedent 
hire  for  those  negroes  which  she  held  under  the  settlement — much  less 
can  they  have  such  an  account  from  her  husband  after  her  decease. 

Pettigru,  for  the  appellant,  commented  at  length  on  the  grounds 
taken,  and  cited  and  relied  on  1  Schoals  &  Lefroy ;  Toller's  Law  Ex. 
282  ;  Coleman  v.  The  Duke  of  St.  Albans,  3  Yes.,  Jr.,  375  ;  Higgins 
V.  York  Buildings,  2  Atk.  107. 

Treville,  contra,  referred  to  1  Sch.  &  Lef.  269  ;  Padgett  v.  Hoskins, 
Prec.  Ch.  431 ;  1  Eq.  Rep.  427. 

Habper,  J.  There  is  no  question  with  respect  to  the  negroes  Avhich 
Mrs.  Palmer  derived  under  her  father's  will ;  they  have  been  disposed  of 
according  to  the  provisions  of  the  will,  and  I  do  not  understand  them  to 
be  in  the  defendant's  possession.  With  respect  to  the  hire  of  those 
slaves  which  the  Commissioner  has  reported,  and  which  constitutes  the 
defendant's  third  ground  of  appeal,  I  am  of  opinion  the  complainant  is 
not   entitled  to  any  account.     Admitting   the   marriage   settlement   of 


*143]  CHARLESTON-,    APRIL,    1833.  101 

Palmer  to  have  been  void  as  to  creditors,  for  want  of  a  schedule,  it  was 
good  as  between  the  parties  themselves. 

When  it  is  said  that  a  deed,  good  between  the  parties,  is  void  as  to 
creditors,  there  is  perhaps  a  want  of  exact  precision  in  the  language. 
They  may  treat  it  as  void.  They  are  not  compelled  to  institute  any 
legal  proceeding  to  avoid  it,  but  may  seize  the  property,  as  if  there  were 
no  deed.  But  until  they  do  seize  the  property,  the  deed  remains 
perfectly  good.  There  is  no  case  in  which  a  *person  not  a  trustee,  p^,  . 
has  been  held  liable  to  account  for  the  rents  and  profits  of  his  own  •- 
property.  When  a  legacy  is  ordered  to  be  refunded,  it  is  without 
interest :  Gettins  v.  Steele,  1  Swan  200  ;  a  mortgagor  in  possession, 
though  the  legal  title  be  in  the  mortgagee,  is  not  accountable  for  rents 
and  profits.  Higgins  v.  The  York  Building  Company,  2  Atk.  lOt ; 
Mead  v.  Orrery,  o  Atk.  244  ;  Coleman  v.  The  Duke  of  St.  Albans,  3 
Ves.  32.  In  a  case  decided  by  myself  as  Chancellor,  at  Columbia,  I 
held,  after  very  full  consideration,  that  an  heir-at-law  in  possession,  was 
not  accountable  for  rents  and  profits;  it  would  operate  hardship, 
approaching  the  effect  of  fraud,  to  make  one  account  for  profits  which  he 
may  have  expended,  in  the  just  confidence  of  their  being  his  own. 

With  respect  to  the  defendant's  first  ground  of  appeal,  it  is  not  con- 
tended on  the  part  of  the  complainant,  that  any  assets  of  the  estate  of 
his  wife  came  into  the  defendant's  hands  after  her  death ;  nor  that  a 
husband  is  liable  for  the  debt  or  devastavit  of  his  wife,  contracted  or 
committed  before  the  marriage,  in  respect  of  her  property  which  he  has 
acquired  by  the  marriage,  when  his  liability  has  not  been  fixed  during 
the  coverture.  The  claim  is  to  follow  the  specific  assets  of  the  estate  of 
Palmer,  in  his  hands.  The  wife's  life  estate  in  the  negroes  included  in 
the  marriage  settlement,  was  claimed  as  suc^h  assets.  I  have  already 
expressed  the  opinion  that  they  could  not  be  so  regarded.  After  the 
death  of  her  husband,  they  were  her  own  property,  and  after  her  second 
marriage,  her  life  estate  vested  in  the  second  husband. 

But  with  respect  to  the  nine  negroes  derived  from  the  estate  of  Palmer, 
I  am  of  opinion  that  they  may  be  followed  as  assets  of  that  estate. 
There  is  no  doubt  about  the  general  rule,  that  if  an  executor  or  adminis- 
trator proves  insolvent,  creditors  may  follow  the  assets  in  the  hands  of  a 
legatee  or  distributee,  and  compel  them  to  refund,  even  although  the 
executor  may  have  retained  sufficient  assets  to  pay  the  debts  and  wasted 
them.  1  Yern.  94 ;  2  lb.  205.  It  was  said  that  when  the  distributee 
has  died  and  transmitted  the  property  to  others,  this  is  too  far  to  follow  it  : 
*I  know  of  no  such  limit  to  the  right.  In  the  anonymous  case,  1  r*245 
Yern.  162,  the  legatees  of  an  executor,  who  had  wasted  his 
testator's  estate,  were  compelled  to  refund,  by  a  creditor  of  the  first  testa- 
tor.    There  is  no  limit  in  such  case,  but  that  of  time.     In  the  case  of 

Miller  v.  ,  decided  by  myself,  and  the  decree  affirmed  by  this  Court, 

I  held  that  a  legatee  who  had  received  his  legacy,  might  protect  himself 
by  the  statute  of  limitations.  But  the  statute  cannot  avail  the  defendant 
in  this  case,  the  complainant's  cause  of  action  arose  just  before  the  filing 
of  the  bill.  It  was  argued  that  the  other  distributee  of  Palmer  ought  to 
have  been  made  a  party,  and  to  refund  in  proportion.  If  Mrs.  Palmer 
had  been  merely  a  distributee,  and  not  an  administratrix,  there  might  be 
something  in  this.     If  she  were  living,  the  complainant's  bill  would  be 


102  SOUTH    CAROLINA    EQUITY    REPORTS.  [*145 

properly  against  her  alone  ;  the  demand  would  be  established  against 
her,  as  administratrix,  and  payment  enforced  out  of  this  property,  or  any 
other  in  her  possession. 

Her  personal  representative  stands  in  her  stead.  It  would  only  be  in 
the  event  of  her  insolvency,  that  the  complainant  would  be  authorized  to 
go  against  the  other  distributee.  Having  paid  a  debt  which  had 
unexpectedly  arisen,  she  might  compel  the  other  distributee  to  refund 
rateably.  It  appears,  too,  that  she  took  a  bond  of  the  other  distributee, 
to  refund  in  the  event  which  has  happened.  Of  this  she  might  have 
availed  herself,  and  so  may  her  representative  now  do,  unless  it  be  true  as 
stated,  that  she  received  assets  of  the  estate  over  and  above  her  distribu- 
tive share,  sufficient  to  satisfy  this  demand.  If  this  be  so,  she  can  never 
have  any  claim  for  contribution  against  the  other  distributee. 

It  is  ordered  and 'decreed,  that  the  report  of  the  Commissioner  be  con- 
firmed, so  far  as  respects  the  nine  slaves  in  the  hands  of  the  defendant, 
derived  from  the  estate  of  Palmer,  but  in  other  respects  overruled,  and 
the  order  confirming  the  same  reversed. 

Johnson  and  O'Xeall,  Js.,  concurred. 


^,  ,„-,  *Mary  Motte  vs.  John  S.  Schult  and   Francis  T.   Motte, 
-I  Trustees. 

A  Court  of  Equity  may  decree  between  co-defendants,  on  evidence  arising  from 
pleadings  and  proofs  tietween  plaintiffs  and  defendants.  [*146] 

O'Neall,  J.  Upon  looking  into  this  case,  it  appears  that  the  plaintiff 
is  the  cestui  que  trust  of  the  defendants,  and  claimed  from  them  an 
account  and  investment  of  the  proceeds  of  four  negro  slaves,  sold  by 
them  under  the  order  of  the  Court  of  Equity.  The  defendant  Francis 
T.  Motte,  received  of  the  proceeds  of  said  sale  $739  43,  by  applying  that 
sum  to  the  payment  of  his  individual  debt  to  his  co-defendant,  and  gave 
to  him  as  trustee,  his  bond  for  the  payment  of  that  sum.  To  secure  the 
payment  of  it,  he  gave  him  a  mortgage  of  several  negroes,  which  he  had 
previously  mortgaged  to  Schult  for  the  payment  of  his  individual  debt. 
After  some  time,  Schult  foreclosed  his  mortgage  by  a  seizure  of  the 
mortgaged  slaves,  and  sold  them  in  satisfaction  of  his  own  and  the  trust 
debt,  except  one  who  died  in  jail  before  any  sale  was  effected.  The 
debt  to  himself  was  entirely  satisfied,  and  upon  that  to  the  trust  estate, 
a  balance  was  left  of  $293  55.  On  the  reference  before  the  Com- 
missioner, the  defendant  Schult  being  advised,  very  properly,  that  he  was 
eventually  liable  for  this  sum  to  the  cestui  que  trust,  paid  it,  and  claimed 
a  decree  for  the  same,  against  his  co-defendant  Motte.  The  Chancellor 
gave  a  decree  in  his  favor,  and  the  question  now  is,  whether  the  Court 
possessed  the  power  of  making  the  decree  between  co-defendants.  In 
the  case  of  Chalmey  v.  Lord  Dunsany,  2  Sch.  &  Lef.  710,  Lord  Redes- 
dale  says,  "  but  it  seems  strange  to  object  to  a  decree  because  it  is 
between  co-defendants,  when  it  is  grounded  on  evidence  between  the 
pUiintiffs  and  the  defendants.     It  is  a  jurisdiction  long  settled  and  acted 


*146]  CHARLESTON,    APRIL,    1833.  103 

on,  and  the  constant  practice  of  a  Court  of  Equity  ;  so  much  so,  that  it 
is  quite  unnecessary  to  state  any  case  in  its  support."  At  page  718, 
Lord  Eldon  states  the  rule  still  more  strongly,  "  when  a  case  is  made  out 
between  defendants  by  evidence  arising  from  pleadings  and  proofs 
between  plaintiffs  and  defendants,  a  Court  of  Equity  is  entitled  to  make 
a  decree  between  the  defendants — further,  *my  Lords,  a  Court  of  r^-i^n 
Equity  is  bound  to  do  so.  The  defendant  chargeable  has  a  right  L 
to  insist  that  he  shall  not  be  made  a  defendant  in  another  suit,  for  the 
same  matter  that  may  then  be  decided  between  him  and  his  co-defendant. 
And  the  co-defendant  may  insist  that  he  shall  not  be  obliged  to  institute 
another  suit,  for  a  matter  which  may  be  then  adjusted  between  the  de- 
fendants. And  if  a  Court  of  Equity  refused  so  to  decree,  it  would  be 
good  cause  of  appeal,  by  either  defendant. " 

These  views  of  two  of  the  greatest  Chancery  lawyers,  on  a  point  made 
for  the  reversal  of  the  decree,  were  acquiesced  in  as  correct,  by  the  House 
of  Lords,  including  Lord  Erskine,  the  then  Lord  Chancellor,  and  the 
decree  affirmed.  This  authority  settles  the  rule,  that  a  Court  of  Equity 
may  decree  between  co-defendants  ;  and  the  only  limitation  to  this  power 
is,  that  the  decree  must  be  upon  evidence  "arising  from  pleadings  and 
proofs  between  plaintiffs  and  defendants."  It  is  necessary,  therefore,  to 
inquire,  in  this  case,  whether  the  decree  is  made  upon  evidence  arising 
from  the  pleadings  and  proofs  between  the  plaintiffs  and  the  defendants. 

In  equity,  trustees  are  primarily  liable  each  for  his  own  acts ;  they 
may  be  made  jointly  liable,  so  far  as  they  have  concurred  in  any  act. 
This  joint  liability  is,  however,  alone  to  the  plaintiff — as  between  them- 
selves, each  is  bound  for  whatever  he  has  received,  and  for  his  share  of 
the  amount  recovered  against  them  for  any  improper  joint  act.  Indeed, 
in  equity,  I  regard  all  liabilities  as  in  the  first  instance  several ;  that  is, 
each  must  account  for  his  wrongful  act,  and  another  who  may  be  also 
liable  for  it,  on  account  of  his  concurrence  in  or  assent  to  it,  if  he  received 
no  benefit  from  it,  stands  as  a  guarantor  or  security  to  make  it  good,  in 
the  event  of  the  actor  being  unable  to  pay.  The  pleadings  in  this  cause 
make  the  question,  how  much  were  the  defendants  liable  to  account  for 
separately,  or  jointly,  to  the  plaintiffs  ?  I  say  they  make  this  question, 
because  this  is  the  legal  effect  of  a  bill  against  trustees  for  an  account. 
The  proof  under  these  pleadings,  was  to  show  the  amount  received  by  one 
or  *both  of  these  defendants.  The  proof  on  which  the  defendant  r*]^|g 
Motte  is  made  liable  to  his  co-defendant  Schult,  was  adduced  to  '- 
fix  their  joint  liability,  by  showing  that  although  Motte  actually  received 
the  money  by  applying  it  to  his  private  debt,  yet  that  Schult  concurred  in 
this  arrangement,  and  actually  took  an  insufficient  security  for  the  pay- 
ment of  the  sum  so  received  by  Motte,  to  the  trust  estate. 

It  is  therefore  ordered  and  decreed,  that  the  decree  of  Chancellor 
Johnston  be  affirmed. 

Johnson,  J.,  concurred. 

Harper,  J.,  absent. 

Lance,  for  the  appellant. 

Finley,  contra. 


104  SOUTH   CAROLINA   EQUITY   REPORTS.  [*148 


Ex  parte,  Virginia  Galluchat  and  her  minor  children. 

The  Court  of  Equity  has  no  power  to  substitute  an  executor  in  the  place  of  another ; 

but  where  an   executor  has  removed  from  the  State,  leaving  his  cestui  que  trusts 

and   the  trust  estate,  the   Court  will,  on  the  application  of  the  cestui  que  trusts, 

appoint  a  receiver.(a)[*150J 
Qucere. — Can  the  Ordinary  appoint  an  administrator,  where  the  executor  had  made 

probate  and  gone  without  the  State  ? 

This  was  a  petition  for  the  substitution  of  a  trustee,  under  the  follow- 
ing circumstances  : — The  Rev.  Joseph  Galluchat,  by  his  will  dated  at  St. 
Augustine,  on  the  1st  January,  182.5,  among  other  bequests  and  provisions 
directed  as  follows,  "all  the  rest,  remainder  and  residue  of  my  property 
and  estate,  shall  be  vested  in  some  safe  and  productive  stock,  the  interests 
and  profits  of  which  I  give  to  my  wife  Virginia,  during  her  lifetime,  or  so 
long  as  she  shall  remain  my  widow."  It  was  further  provided,  that  if 
either  of  the  testator's  children,  during  the  widowhood  of  his  wife,  should 
arrive  at  full  age,  or  marry,  then  his  said  widow  should  be  authorized,  at 
her  discretion,  to  give  such  child  a  portion  of  the  estate  ;  and  at  the  death 
of  the  widow,  the  rest  and  residue  of  the  estate  was  to  be  equally  divided 
*14Q"1  '^^tween  the  children  of  the  testator.  The  *executors  appointed 
-J  by  the  will  are  Dr.  S.  H.  Dixon  and  Duke  Goodman,  of  whom 
the  latter  alone  ever  qualified  or  acted  iu  the  management  of  the 
estate.  At  the  time  of  filing  the  petition,  the  residue  of  the  testa- 
tor's estate  consisted  of  a  bond  and  mortgage  of  the  petitioner,  (Mrs. 
Galluchat)  taken  for  a  loan  made  to  her  by  the  executor,  under  the 
authority  of  the  Court,  and  also  of  fifty-seven  bank  shares.  It  also 
appeared  that  the  said  Duke  Goodman,  the  executor,  had  recently  left 
the  State,  and  removed  to  Mobile  in  the  State  of  Alabama,  where  he  for 
the  future  will  reside  permanently,  Before  he  left  the  State,  he  accounted 
fully  before  the  commissioner  for  his  management  of  the  trust  estate, 
under  the  will  of  Mr.  Galluchat;  and  since  his  determination  to  settle  in 
Alabama,  he  has  written  to  request  that  he  may  be  released  from  the  trusts 
imposed  on  him  under  said  will.  The  commissioner  of  the  Court,  Mr. 
Gray,  also  expressed  in  writing  his  willingness  to  be  substituted  in  his 
stead,  as  the  trustee  of  the  petitioners.  The  petition  was  presented  in 
behalf  of  the  widow  and  minor  children  of  Mr.  Galluchat,  and  prayed 
for  the  said  substitution  of  the  trustee.  It  was  rejected  by  Chancellor 
Johnston,  on  the  ground  that  he  had  not  power  to  grant  it ;  that  if  Mr. 
Goodman  chooses,  he  may  appoint  an  attorney  to  act  for  him  under  the 
irusts  confided  in  him  as  executor  by  the  will,  but  that  the  Court  had  no 
power  to  discharge  him,  and  appoint  or  substitute  another.  A  motion 
is  now  made  to  reverse  this  decree,  on  the  ground  that  under  the  circum- 
stances of  the  case  the  chancellor  has  authority,  and  ought  to  grant  the 
prayer  of  the  petition. 

O'Neall,  J.  It  appeal's  that  when  an  executor  is  resident  out  of  the 
State,  and  has  never  made  probate  of  the  will,  the  ordinary  may  grant 
administration  cum  testamento  annexu  durante  absentiu. 

(a)  Haigood  v.  Wells,  ante  59. 


*149]  CHARLESTON,    APRIL,    1833.  105 

In  4  Mod.  14,  (1090)  sci.  fa.  was  brought  by  J.  Hodge,  administrator 
of  A.  Hodge,  during  the  absence  of  N.  Hodge,  upon  a  judgment  recovered 
in  the  Court  of  King's  Bench,  upon  which  there  was  a  writ  of  error 
brought  in  the  *Exchequer  Chamber,  and  judgment  aflfirmed ;  it  r:^^rr. 
was,  among  other  things,  objected,  that  the  ordinary  had  no  L 
common  law  power  to  appoint — that  his  power  was  by  statute  ;  but  the 
objection  was  overruled  by  Slater  v.  May,  2  Lord  P^ay.  1071,  recognises 
the  power  of  the  ordinary  to  appoint  an  administrator  durante  absentia, 
when  the  executor  is  beyond  the  realm. 

The  Stat.  38  G.  3,  c.  87,  gave  the  ordinary  power  to  appoint  an  admin- 
istrator, when  the  executor  had  made  probate,  and  gone  without  the 
realm.  Lord  Alvanley's  judgment  in  the  case  of  Taynton  v.  Hannay, 
3  B.  &  P.  30.  Whether  the  ordinary  may  not,  in  this  State,  exercise  a 
similar  power,  it  is  not  now  necessary  to  examine.  A  case  involving 
some  such  question,  was,  it  is  believed,  decided  some  years  ago  in  Colum- 
bia, and  it  is  therefore  intended  to  leave  that  matter  perfectly  open  for 
future  examination.  In  any  event,  whether  the  ordinary  has  or  has  not 
the  power  to  appoint,  there  can  be  doubt  that  the  Court  of  Equity  may, 
in  some  shape,  give  relief  to  the  parties  in  interest,  where  the  executor 
has  abandoned  his  trust,  and  removed  from  the  State  ;  Buchanan  v. 
Hamilton,  5  Ves.  722.  I  agree,  however,  with  the  Chancellor,  that  this 
Court  has  no  power  to  substitute  another  in  the  place  of,  and  to  act  as,  the 
executor  of  the  testator.  The  act  of  '96,  for  the  substitution  of  a  trustee, 
does  not  apply  to  such  a  case.  It  is  true,  an  executor  is  a  trustee,  yet  it 
is  not  by  this  general  name  he  is  distinguished  and  known  in  our  acts  of 
the  legislature  ;  he  is  always  called  an  executor,  as  will  be  seen  by  refer- 
ring to  all  acts  in  relation  to  executors  or  administrators.  The  separation 
of  executors  from  trustees,  who  have  no  specific  legal  name,  is  clearly 
made  by  the  act  of  1745,  providing  for  the  compensation  of  executors, 
administrators,  guardians  or  trustees,  in  the  discharge  of  their  respective 
duties  and  trusts.  The  act  of  '96  applies  to  trustees  created  by  deed  or 
will,  to  whom  estates,  real  or  personal,  are  conveyed  or  devised  to  be 
held  for,  assigned  to,  or  managed  for,  another.  The  executor  is  a  trustee 
known  by  a  specific  name,  designating  his  office,  and  is  not  embraced  by 
the  general  term  trustee,  used  in  the  act.  His  is  a  general  trust — their's 
special.  His  authority  *and  duty  arise  both  from  law  and  the  r*i5i 
will — their's  from  the  terms  and  object  of  their  appointment. 

In  this  case  it  appears,  or  rather  I  so  understand  from  what  is  stated, 
that  the  bank  stock  stands  on  the  books  of  the  bank,  in  the  name  of  the 
executor ;  and  that  the  bond  and  mortgage  of  Mrs.  G-alluchut  are  also 
to  him.  He  has  left  the  scrip  for  the  bank  stock,  and  the  bond  and 
mortgage,  with  two  of  his  friends,  to  be  deposited  for  safe-keeping  in  the 
Planters'  and  Mechanics'  Bank.  No  person,  so  far  as  I  am  able  to  dis- 
cover, has  any  authority  from  him  to  recover  the  dividends  of  the  bank 
stock,  or  to  see  that  the  security  for  the  payment  of  the  bond,  the  pro- 
perty mortgaged,  is  not  aliened  or  removed.  Under  these  circumstances 
the  question  is,  will  the  Court  not  interfere,  both  for  the  preservation  of 
the  trust  fund,  and  for  the  correct  appropriation  of  the  income  ?  As  long 
as  the  executor  remains  within  the  jurisdiction  of  the  Court,  the  Court 
would  not,  unless  under  very  extraordinary  circumstances,  deprive  him  of 
the  management  of  the  trust ;  yet  when  he  removes  from  the  State,  will 


106  SOUTH   CAROLINA   EQUITY    REPORTS.  [*151 

the  Court  permit  him  either  to  remove  the  trust  estate,  or  manage  it  ? 
His  removal  places  him  bej'ond  the  process  of  the  Court,  and  he  is  no 
longer  liable  to  account  to  it.  His  removal  of  the  trust  estate  might 
enable  him  to  defeat  the  trust,  and  his  management  of  it  by  attorney, 
might  place  it  in  irresponsible  hands,  and  have  the  same  effect.  In  some 
cases,  as  when  the  executor  and  his  cestui  que  trusts  remove  together, 
the  Court  would  permit  him  to  remove  the  trust  estate,  and  it  may  be 
that  under  circumstances  showing  that  it  was  for  the  benefit  of  the  estate, 
the  Court  would  not  interfere  to  prevent  the  attorney  of  an  executor  who 
has  removed  from  the  State,  from  managing  the  trust  estate. 

But  generally,  when  an  executor  removes  from  the  State,  leaving  both 
liis  cestui  que  trusts  and  the  trust  estate  in  the  State,  it  is  the  duty  of 
the  Court  of  Equity,  on  the  application  of  the  cestui  que  trusts,  to 
appoint  a  receiver.  For  there  would,  in  such  a  case,  be  an  abandonment 
of  the  trust,  voluntary,  it  is  true,  on  the  part  of  the  executor,  and  which 
j^l  rc)n  cannot  therefore  benefit  him,  but  which  *the  Court  will  take  care 
"^  shall  not  prejudice  the  cestui  que  trusts 

In  this  case  the  executor  Goodman  appears  to  have  acted  in  good 
faith ;  he  fully  accounted  under  the  order  of  this  Court,  and  invested 
the  balance  of  his  testator's  estate  agreeably  to  its  order.  He,  as  well 
as  the  petitioners,  has  asked  the  appointment  of  some  one  to  act  in  his 
place.  The  commissioner,  Mr.  Gray,  is  the  usual  and  proper  person  to 
bo*  appointed  receiver,  and  he  has  consented  in  writing  to  act  in  the  place 
of  Mr.  Goodman.  I  think  that  the  Chancellor,  nistead  of  dismissing  the 
petition,  ought  to  have  appointed  Mr.  Gray  the  Commissioner,  receiver 
for  the  petitioners. 

It  is  ordered  and  decreed,  that  the  decree  dismissing  the  petition  be 
reversed  ;  that  James  W.  Gray,  the  Commissioner  of  this  Court,  be  ap- 
pointed receiver  of  the  petitioners ;  and  that  upon  the  executor,  Duke 
Goodman,  transferring  the  bank  stock,  and  assigning  the  bond  and  mort- 
gage of  Mrs.  Galluchat,  to  the  said  receiver,  he  (the  said  Duke)  be  dis- 
charged from  any  future  liability  in  relation  to  the  same. . 

Johnson,  J.,  concurred. 

Harper,  J.,  absent. 


Ux  parte,  S.  W.  Leith,  executor  of  "Wm.  Patterson. 

Where  a  testator,  by  his  vrill,  devised,  viz. :  "  all  the  residue  and  remainder  of  my 
real  and  personal  estate,  wheresoever  situated,  to  be  equally  divided  in  the  fol- 
lowing proportions,  that  is  to  say,  two  shares  to  my  deceased  sons'  (William  and 
James)  children,  to  be  equally  divided  among  them:"  it  was  held,  that  all  the 
children  of  William  and  James  took  equally ^jer  cajnta.\_*l5Z^ 

The  Commissioner  having  been  directed  to  settle  with  the  guardians  of 
the  children  of  William  and  James  Patterson,  legatees  under  the  will  of 
William  Patterson,  deceased,  submitted  to  the  Court  the  following  clause 
of  said  will,  and  requested  the  opinion  of  the  Court,  for  his  direction  in 
making  partition  among  the  legatees. 


*153]  CHARLESTON,    APRIL,    1833.  107 

*"  All  the  residue  and  remainder  of  my  real  and  personal  estate  r*ico 
wheresoever  situated,  to  be  equally  divided  in  the  following  pro-  L 
portions,  that  is  to  say  ;  two  shares  to  my  deceased  sons',  William  and 
James',  children,  to  be  equally  divided  among  them,"  &c. 

The  question  submitted  to  the  Court,  is,  whether  the  three  children  of 
William  are  to  receive  one  share,  and  the  two  children  of  James  the 
other  share,  or  whether  the  two  shares  are  to  be  thrown  together,  and 
then  divided  equally  between  the  said  five  children. 

Harper,  J.  {sifting  as  Chancellor.)  I  am  of  opinion  that  under 
the  devise  to  the  children  of  William  and  James,  the  children  of  those 
sons  of  the  testator  take  equally  and  jjer  capita,  and  it  is  decreed  ac- 
cordingly. 

From  this  decree  an  appeal  was  taken. 

Mazyck  and  Frost,  for  the  appellants. 
Bailey,  contra. 

Johnson,  J.     If  the  clause  of  the  will  out  of  which  this  question  arises, 
be  interpreted  according  to  the  natural  import  of  the  terms  used,  there 
would  seem  to  be  no  doubt  that  they  must  operate  as  a  devise  or  bequest 
of  the  testator's  estate,  to  be  divided  between  the  children  of  his  deceased 
sons,  William  and  James,  per  capita,  and  not  per  stripes.     They  are 
described  as  one,  and  not  several  classes.     It  is  like  the  case  of  Butler 
and  Straten,  3  Bro.  Ch.  Ca.  367,  where  it  was  held,  that  under  a  bequest 
to  the  descendants  of  two  persons,  all  their  descendants,  as  well  grand- 
children as  children,  took  per  capita.     This  conclusion  is  strengthened 
by  the  disposition  which  he  makes  of  the  remaining  third  part  of  this 
legacy ;   that,  the  testator  directs,  shall  be  equally  divided  amongst  the 
children  of  his  son  John  C.  who  was  still  living,  and  shows  that  the  testa- 
tor understood  the  necessity  of  separating  them  into  classes,  where  he  in- 
tended they  should  take  per  capita.     The  same  thing  occurs  in  the  first 
clause  of  the  will,  and  even  more  strikingly,  "  I  give  to  my  grandchildren, 
all  my  household  furniture,  to  be  equally  divided  amongst  them,  that  is 
*to  say,  one  share  to  the  children  of  my  deceased  sou  William,  r*]^54 
one  share  to  the  children  of  my  deceased  son  James,  and  one  share 
to  my  son  John's  children;"  and  this  has  been  relied  on  by  the  counsel 
as  furnishing  an  interpretation  of  the  devise  of  the  residuum,  but  I  think 
the  converse  follows.     If  he  intended  to  make  the  same  disposition  of  the 
residuum,  that  he  had  done  of  the   household  furniture,  he  would  have 
used   the   same   phraseology.       His   having   changed  it,   is   a^  circum- 
stance to  show  that  he  did  not  intend  to  make  the  same  disposition  ;  and 
I  contend,  therefore,  that  he  intended  precisely  what  he  has  expressed, 
that  two-thirds  of  the  residue  of  his  estate  should  be  equally  divided 
amongst  the  children  of  his  deceased  sons  William  and  James. 

Motion  dismissed. 

O'Neall,  J,,  concurred. 


* 


155] 


108  SOUTH   CAROLINA   EQUITY   REPORTS.  [*154: 


Samuel  Cordes,  and  others,  v.  "Wm.  Ardrian,  and  another. 

Where  the  testator  bequenthed,  viz.  :  "  to  my  son  Thomas  and  to  him  and  his  heirs 
and  assigns  forever,  the  following  negroes,  [naming  them]  and  should  he  die 
■without  lawful  issue,  the  said  negroes  shall  return  to  my  other  surviving  chil- 
dren;" Held,  that  the  limitation  over  was  good  [*155] 

It  has  been  the  constant  practice  of  the  Court  of  Equity,  to  require  security  for  the 
forthcoming  of  property  on  the  termination  of  a  life  estate,  or  on  any  other  event 
■when  the  rights  of  remainder-men  or  reversioners  spring  up,  whenever  those 
rights  appear  to  be  in  danger. (aj[*  157] 

The  will  of  Mrs.  Charlotte  Cordes,  contains  the  following  clause :  "  I 
give  and  bequeath  to  my  son,  Thomas  Evans  Codes,  and  to  him  and  his 
heirs  and  assigns  forever,  the  following  negroes  ;  Mollj^,  Chane,  Harriet, 
Maria,  Solomon,  Feb,  Amy,  Gabriel  and  Juliana,  together  with  the  pre- 
sent and  future  issue  of  the  females,  and  should  he  die  without  lawful 
issue,  the  said  negroes  shall  return  to  ray  other  surviving  children." 

Two  of  these  negroes  (Maria  and  Solomon)  were  levied  on  and  sold 
under  an  execution  against  Thomas  Evans  Cordes,  and  purchased  by  the 
defendant  Ardrian.  Notice  was  given  at  the  time,  of  the  plaintiff's  claim. 
The  plaintiff's,  the  children  of  Mrs.  Cordes,  claim  the  slaves  under  the 
above  clause  of  her  will,  in  the  event  of  the  death  of  *Thomas 
Evan  Cordes  without  lawful  issue  ;  and  they  filed  this  bill  to  en- 
join the  defendant  from  disposing  of  the  negroes  purchased  by  him,  and 
to  compel  him  to  give  security  for  their  forthcoming  to  answer  their 
claim. 

An  injunction  was  granted  by  th«  Master. 

The  defendant,  Ardrian,  in  his  answer,  insisted  that  Thomas  Evans 
Cordes  took  an  absolute  estate  in  the  negroes  ;  and  if  he  did  not,  that  he 
had  purchased  his  life  estate  at  sheriff's  sale,  and  had  a  right  to  dispose 
of  it  at  pleasure :  he  also  contended  that  the  injunction  should  be  dissolved, 
because  the  bill  was  not  sworn  to  by  the  plaintiff",  but  by  (Richard  Teas- 
dale)  a  stranger  to  the  proceedings. 

Chancellor  Johnston,  on  a  motion  made  before  him  at  chambers,  dis- 
solved the  injunction,  on  the  ground  that  the  bill  was  not  properly 
sworn  to.  After  its  dissolution,  the  defendant  sold  his  interest  in  the 
negroes. 

The  case  afterwards,  came  to  a  hearing  at  Charleston,  January,  1833, 
and  the  following  decree  was  delivered. 

De  Saussure,  Chancellor.  The  briefs  of  the  bill  and  answer  state 
the  case  and  make  part  of  this  decree.  Two  questions  arise  in  this  case. 
The  first  is,  whether  the  limitation  over  in  the  will  of  the  late  Mrs.  Char- 
lotte Cordes,  mother  of  the  complainants,  is  within  the  prescribed  limits, 
and  therefore  good  ;  or  whether  the  limitation  is  too  remote,  and  void  ? 
The  words  in  the  will  are,  "  I  give  and  bequeath  to  my  son,  Thomas 
Evans  Codes,  and  to  him  and  his  heirs  and  assigns  forever,  the  following 
negroes  : — Molly,  Chane,  Harriet,  Maria,  Solomon,  Feb,  Amey,  Gabriel, 
and  Juliana,  together  with  the  present  and  future  issue  of  the  females,  and 
should  he  die  without  lawful  issue,  the  said  negroes  shall  return  to  my 


(a)  See  Hinson  v.  Pickett,  ante,  44 ;  Clark  v.  Saston,  74  ;  Pringle  v.  Allen,  ante,  137. 


*155]  CHARLESTON,    APRIL,    1833.  109 

other  surviving  children."  This  whole  subject  is  questio  vexata;  many  deci- 
sions have  been  made  in  the  English  Courts  which  are  not  at  all  reconcil- 
able. In  our  own  Courts  it  has  been  much  mooted — without  goino- 
through  the  mass  of  them,  it  may  be  sufficient  to  notice  a  few  of  them. 
In  Guerry  v.  Yernon,  1  N.  &  M'C.  69,  decided  in  1818,  there  was  a  be- 
quest by  a  testator  of  two  female  slaves  and  their  increase,  to  his  daughter, 
Florida  Guerry,  "but  in  case  my  daughter,*  Florida  Guerry,  r-j-ir^ 
should  die  without  heirs  of  her  body,  then  the  said  negro  girls,  L 
Isabel  and  Hannah,  to  return  to  my  son  Isaac  Guerry,  and  if  my  son, 
Isaac  Guerry  should  die  without  issue,  then  the  said  negroes  to  return  to 
my  son  James  Walker's  children."  The  daughter  Florida  survived  her 
father,  married  and  died  without  leaving  any  issue  alive  at  her  death. 
That  learned  judge  and  distinguished  citizen,  Mr.  Cheves,  delivered  the 
opinion  of  the  whole  Court,  that  the  limitation  over  was  too  remote 
and  void. 

In  Henry  v.  Felder,  2  M'C.  Ch.  333,  decided  by  the  Court  of  Appeals 
in  1827,  the  words  of  the  bequest  were  as  follows,  "I  give  and  bequeath 
to  Elizabeth  Conlietle,  a  negro  girl  named  Dinah,  to  her  and  the  heirs 
of  her  body  lawfully  begotten  forever,  but  on  failure  of  issue,  to  go  to  the 
eldest  child  of  my  daughter  Nancy  Connor."  Chancellor  Thompson  held 
the  limitation  to  be  too  remote  and  void,  and  the  Court  of  Appeals  in  an 
elaborate  argument  sustained  the  decree.  These  then  are  cases  where 
Court  guarded  against  limitations  of  too  great  an  extent,  and  declared 
them  void. 

In  the  case  of  Treville  v.  Ellis,  (unpublished  manuscript  case)  the  tes- 
tator, after  giving  to  his  children  different  portions  of  property,  goes  on  to 
say,  "  It  is  my  will  and  desire,  that  shguld  any  of  my  children  die  without 
lawful  heirs  of  their  body,  that  then  their  part  or  division  of  my  estate 
shall  be  divided  equally  between  the  surviving  children,  share  and  share 
alike."  The  Chancellor  (De  Saussure),  held  the  limitation  over  too  re- 
mote and  void.  The  Court  of  Appeals  held  the  limitation  over  to  be 
good,  and  reversed  the  Chancellor's  decree.  In  Stephens  v.  Patterson 
executor  of  King  (manuscript  case),  decided  in  1828,  the  words  of  the 
will  were  "  I  give  and  bequeath  to  my  daughter  Mary,  my  negro  woman 
named  Rose,  together  with  her  increase,  to  her  and  the  heirs  of  her  body, 
but  should  she  die  without  lawful  issue,  then  the  said  negro  girl  Rose  to 
go  back  and  be  equally  divided  among  the  survivors  of  my  children  afore- 
mentioned." Chancellor  De  Saussure  decreed  that  the  limitation  over 
was  too  remote  and  void.  The  Court  of  Appeals  after  an  elaborate 
*argument  decided  that  the  devise  over  was  good,  and  reversed  r^^ST 
the  decree  of  the  Circuit  Judge.  It  appears  to  me  that  the  two 
decisions,  of  Treville  and  Ellis,  and  particularly  of  Stephens  and  Patter- 
son, are  so  entirely  applicable  to  the  one  we  are  considering,  that  they 
must  govern  it.  It  must  therefore  be  decided,  that  the  limitation  over  is 
good,  and  that  the  complainants  will  be  entitled  to  the  slaves  in  question, 
on  the  death  of  Thos.  Evans  Cordes  without  lawful  issue. 

The  second  question  in  the  case  is,  whether  the  complainants  are  en- 
titled, under  the  circumstances  of  the  case,  to  security  for  the  forthcoming 
of  the  slaves  in  question,  after  the  death  of  Thos.  Evans  Cordes.  The 
circumstances  are  as  follows.  The  legatee  Thomas  Evans  Cordes,  who 
was  in  possession  of  the  slaves,  being  in  debt,  a  creditor  levied  his  execu- 


110  SOUTH    CAROLINA    EQUITY    REPORTS.  [*157 

tion  on  two  of  the  slaves  bequeathed  to  him  ;   a  sale  was  made  under  the 
execution  of  the  two  slaves  (Maria  and  Solomon),  and  William  Ardi'ian 
one  of  the  defendants,  became  the  purchaser ;  notice  had  been  given  at 
time  of  sale,  by  Mr.  Pettigru,  of  the  interest  of  the  comyjlainants,  so  that 
he  purchased  with  a  knowledge  of  those  interests,  and  that  he  wias  buying 
a  law  suit.     The  complainants,  fearful  that  all  the  slavesin  the  same  situa- 
tion may  be  sold  and  scattered  over  the  country,  or  even  carried  out  of  the 
State,  insist  on  having  their  interests  secured,  for  the  production  and  de- 
livery of  the  slaves,  on  the  event  occurring  which  would  entitle  them  to 
possession.     It  has  been  the  constant  course  of  the  Court  to  require  se- 
curity for  the  production  of  slaves,  at  the  termination  of  a  life  estate,  or 
any  other  contingency  when  the  rights  of  remainder-men  spring  up,  when- 
ever those  rights  appear  to  be  in  danger.     They  appear  to  be  in  danger 
in  this  case,  as  Mr.  Thos.  E.  Cordes  is  in  debt  and  embarrassed,  and  the 
property  is  not  only  in  danger  of  being  sold  and  scattered  for  his  debts, 
but  it  has  actually  occurred  with  respect  to  the  two  slaves  now  in  question. 
The  sheriff,  and  Mr.  Ardrian  the  purchaser,  were  both  aj^prized  of  the 
^,  ^g-,  right  of  the  complainants  at  the  time  of  the  sale.    *The  dissolution 
'        -■  of  the  injunction  makes  no  difference.     It  was  properly  dissolved, 
because  not  founded  on  a  proper  affidavit.   But  that  does  not  alter  the  ques- 
tion of  right.     The  defendants  having  notice  of  the  right  of  com|)lainants, 
were  bound  to  respect  it.     The  sale  of  the  slaves,  by  the  defendant 
Ardrain  after  the  notice,  increases  the  danger  and  the  necessity. 

It  is  therefore  ordered  and  decreed,  that  the  defendant  William  Ardrian, 
do  give  bond  and  security  to  the  satisfaction  of  the  Commissioner,  in  the 
value  of  the  slaves,  for  the  production  and  delivery  of  the  slaves  Maria 
and  Solomon,  if  alive  at  the  death  of  Thomas  Evan  Cordes  without  law- 
ful issue,  on  which  event  the  complainants  will  be  entitled  to  the  said 
slaves. 

The  defendant,  Ardrian,  appealed  from  this  decree,  because  : 

1.  Thomas  Evans  Cordes  took  an  absolute  estate  under  the  will. 

2.  The  defendant  had  an  unquestionable  right  to  sell  his  interest  in 
the  negroes. 

3.  The  defendant  having  sold  before  the  hearing  and  decree,  and 
this  being  known  to  the  plaintiffs,  he  ought  not  now  to  be  a  party  to  this 
suit. 

Wilson  and  Whitaker,  for  the  appellants,  on  the  first  ground,  cited 
Henry  v.  Felder,  2  M'C.  Ch.  323  ;  and  on  the  other  grounds,  insisted, 
that  Ardrian,  having  acquired  an  interest  by  purchase,  had  the  right  to 
dispose  of  his  own  property  without  the  restraint  of  any  law  or  judicial 
proceeding. 

Pettigru  and  C?'(f^er,  contra,  on  the  first  ground  referred  to  Stevens  v. 
Patterson  (MS.  case),  and  argued,  that  the  defendant,  having  bought  with 
notice  and  sold  j^cndetite  lite,  is  not  entitled  to  the  protection  of  the 
Court ;  and  that  it  has  been  the  constant  practice  of  this  Court  to  pro- 
tect the  rights  of  remainder-men  or  reversioners,  when  they  are  endan- 
gered. 

Pe)-  Curiam.  We  concur  in  opinion  with  the  Chancellor,  for  the  very 
satisfactory  reasons  contained  in  his  decree. 


159]  CHARLESTON,    APRIL,    1833.  HI 


*EuNiCB  Neufville  vs.  Mary  B.  Stuart.  [*159 

A  contract  for  the  sale  of  land  made  by  letter-correspondence  between  the  parties  is 
Yalid,  and  will  be  enforced  if  the  consideration  to  be  paid,  the  time  of  payment, 
and  a  description  of  the  premises,  appear  therein,  sufficiently  certain  to  enable 
the  Court  to  decree  a  specific  performance.  [*1G6] 

The  defendant  in  a  letter  to  the  plaintifi"'s  agent,  proposed  to  purchase  a  plantation 
at  eight  thousand  dollars — six  thousand  dollars  in  cash,  and  two  thousand  dollars 
in  January  following,  and  requested  an  immediate  answer;  the  agent,  by  return 
post  replied,  accepting  the  proposal,  but  added  that  he  presumed  the  two  thou- 
sand dollars  were  to  bear  interest  from  the  date:  Held,  that  this  was  a  contract 
obligatory  on  the  defendant ;  and  that  the  suggestion  in  the  letter  of  acceptance 
with  respect  to  interest,  did  not  constitute  a  new  and  distinct  term,  which  set  the 
contract  afloat  [*167] 

The  plaintiif  in  this  case,  was  possessed  of  a  large  body  of  land  in 
Prince  William's  Parish,  District  of  Beaufort,  called  Graham's  neck, 
which  had  been  divided  into  four  plantations  with  a  view  to  sell.  One 
of  these  tracts  containing  about  eight  hundred  and  sixty-nine  acres  was 
designated  as  the  home  tract  or  settlement.  The  defendant  was  desirous 
of  purchasing  a  plantation,  and  during  the  autumn  of  1830,  made  inef- 
fectual negotiation  with  the  plaintiff  for  one  of  the  five  tracts.  Upon  the 
plaintiff's  leaving  Savannah  for  New  York,  James  L.  Pettigru,  Esq.,  of 
Charleston,  was  appointed  her  attorney,  with  full  power  and  authority  to 
dispose  of  all  or  any  of  the  estate  on  Graham's  neck. 

On  the  1st  of  March,  1831,  the  defendant  wrote  the  following  letter  to 
Mr.  Pettigru. 

"  Mr.  Pettigru — 

"*SiR : — I  will  give  you  far  the  settled  plantation  on  which  Mr.  Neuf- 
ville  resided,  containing  eight  hundred  and  sixty-nine  acres,  $6000  cash, 
and  $2000  January,  1832.  Should  this  proposal  meet  your  concurrence, 
you  will  oblige  me  by  giving  an  immediate  answer.  I  have  just  received 
Mr.  Barnwell's  letter,  stating  that  you  would  take  $10  per  acre.  But  as 
I  offer  so  large  a  proportion  in  cash,  I  hope  it  will  induce  you  to  let  me 
have  it  at  the  price  proposed,  as  I  do  not  think  the  land  is  worth  more, 
nor  would  I  give  any  more  for  it.  Having  another  place  in  view,  I  would 
be  glad  of  an  immediate  answer.     Please  to  remember  me  affectionately 

to ;  believe  me  yours,  &c. 

(Signed,)  Mary  B.  Stuart. 

March  1,  1831." 

By  return  mail,  Mr.  Pettigru  gave  the  following  answer  : 

Charleston,  March  4,  1831. 
Madam — 

I  have  to  acknowledge  your  letter  of  the  1st  of  March,  which  came  to 
hand  by  this  day's  mail,  offering  $8000  dollars*  for  the  tract  of  j-^j^q 
land,  being  the  settled  plantation  on  which  Mr.  Neufville  resided, 
containing  eight  hundred  and  sixty-nine  acres,  viz ;  $6000  cash,  and 
$2000  in  January,  1832.  I  accept  the  offer,  and  will  deliver  i)os.session 
as  soon  as  you  please.  The  deed  will  be  signed  by  Mrs.  Xeiifville.as 
soon  as  a  conveyance  can  be  forwarded  to  her.    I  will  be  ready  to  receive 


112  SOUTH   CAROLINA   EQUITY   REPORTS.  [*160 

the  $G000  when  possession  is  taken,  and  your  bond  and  mortgage  for  the 
$2000  (with  interest,  I  presume,  from  date)  may  be  delivered  when  Mrs. 
Neufville's  deed  is  delivered  to  you.  You  have  a  great  bargain  in  the 
place,  and  will  have,  I  hope,  a  great  deal  of  satisfaction  in  the  purchase. 
I  have  written  to  the  overseer,  to  prepare  for  giving  you  possession, 
&c.,  &c. 

(Signed,)  J.  L.  Pettigru. 

Upon  the  receipt  of  this  letter,  the  defendant  made  the  following 
reply. 

March  9,  1831. 
Mr.  Pettigru— 

"  Sir  :  —  I  am  sorry  to  inform  you,  that  your  letter  came  a  day  too  late 
— I  have  made  a  purchase  of  Brag's  Island. 

Respectfully  yours,  &c. , 
(Signed,)  M.  B.  Stuart." 

The  complainant  considered  the  two  letters  above  exhibited,  as  consti- 
tuting a  complete  and  binding  contract ;  made  preparation  for  giving 
possession,  and  upon  the  defendant's  refusing  to  take  the  plantation,  filed 
this  bill  for  specific  performance.  The  defendant  answered  and  pleaded 
the  statute  of  frauds,  insisting  that  the  two  letters  did  not  constitute  a 
complete  and  certain  contract,  the  answer  of  the  complainant's  agent 
including  a  term,  viz. :  interest  on  the  §2000  from  the  date  of  defendant's 
bond — not  offered  by  the  defendant. 

The  case  came  to  a  hearing  at  Beaufort,  January  Term,  1832,  and  the 
following  decree  was  delivered. 

Johnston,  Chancellor.  The  proof  satisfies  me  that  there  has  been  no 
obstruction  in  the  way  of  the  defendant's  taking  possession  ;  on  the  con- 
trary, there  was,  and  is,  a  perfect  readiness  and  preparation  to  let  her 
^,  „,-,  into  possession.  So  *far  there  is  no  reason  against  enforcing  the 
-J  alleged  contract. 

Again,  I  do  not  think  the  defendant  can  be  released  from  it,  if  other- 
wise binding,  merely  because  when  she  made  her  offer,  she  expected  to 
receive  an  answer  earlier  than  she  did.  Her  letter  of  proposal  to  the 
plaintiff's  agent  fixed  no  definite  time  within  which  the  answer  was  to  be 
given,  nor  did  it  contain  any  thing  calculated  to  apprise  him  that  she 
labored  under  any  misapprehension  as  to  the  existing  run  of  the  mail,  so 
as  to  notify  him  that  he  should  not  consider  the  proposal  open  to  his 
acceptance,  unless  he  could  make  that  acceptance  known  to  her  by  a 
given  day,  Kennedy  v.  Lee,  3  Meriv.  441-8.  She  simply  required  "  an 
immediate  answer,"  so  as  to  put  her  at  liberty,  if  her  offer  should  be 
refused,  to  purchase  elsewhere.  If  "  an  immediate  answer  "  was  given, 
by  which  the  plaintiff  was  bound,  so  that  she  could  not  sell  to  another, 
the  defendant  ought  also  to  be  bound  to  complete  the  purchase.  The 
answer  was  communicated  ))y  the  return  of  post ;  which  was  as  early  as 
it  could  be. 

The  only  difficulty  is  this :  was  there  a  contract  ?  Can  one  be  made 
out,  by  putting  t-^gether  the  defendant's  letter,  of  the  1st,  and  the  answer 
to  it,  of  the  4th  of  March,  1831  ?  2  Hov.'s  Sup  to  Ves.  jr.  119.  Do 
those  letters  set  forth  the  subject  and  terms  of  a  contract,  that  if  put  into 


*161]  CHARLESTON,    APRIL,    1833.  113 

the  hands  of  a  man  of  business,  he  could,  by  a  sound  legal  interpretation 
of  them,  without  further  instruction,  reduce  the  contract  to  form  ?  Ken- 
nedy V.  Lee,  3  Meriv.  451.  Do  they  show  a  treaty,  with  reference  to 
which  mutual  assent  can  be  clearly  demonstrated  ;  or  a  proposal  met  by 
that  sort  of  acceptance  which  makes  it  no  longer  the  act  of  one,  but  of 
both  parties  ? — so  closed  as  to  have  no  essential  terms  to  be  afterwards 
settled  ?  Stratfor-d  v.  Bosworth,  2  Ves.  &  B.  345  ;  and  note  2  to  Brodie 
V.  St.  Paul,  1  Yes.  326.  Does  the  answer,  properly  understood,  amount 
to  an  unqualified,  single  acceptance  of  the  terms  proposed,  without  a 
variation  of  them,  or  the  introdnction  of  any  new  or  different  term,  or 
terms  of  a  different  effect  ?  Holland  v.  Eyre,  2  Sim.  &  Stu.  1 95. 

The  subject  and  terms  of  contract  are  explicitly  set  out  in  the  defend- 
ant's letter  of  the  1st  of  March:  the  settled  plantation,  containing  eight 
hundred  and  sixty-nine  acres — $6000  in  cash,  and  $2000  in  January, 
1832.  The  terms  are  as  distinctly  set  *out  and  accepted  in  the  r:}:-t(^c) 
answer  of  the  plaintiff's  agent,  if  you  exclude  from  that  answer  L 
the  expression  about  interest  from  the  date  on  the  $2000.  The  whole 
case  turns  on  that  expression. 

The  defendant  had  not,  certainly,  proposed  that  the  $2000  should  bear 
interest  from  the  date,  but  only  to  pay  the  $2000  in  January,  1832 ;  and 
would  not  have  become  chargeable  with  interest  on  that  sum,  until  that 
time  had  come  round.  With  what  view,  then,  did  the  plaintiff's  agent, 
after  recapitulating  and  accepting  her  proposal,  mention  this  subject  of 
interest  ?  Did  he  intend  to  constitute  the  payment  of  interest  from  the 
date  on  the  $2000,  part  of  the  terms  accepted  by  him?  Or  did  he  men- 
tion it  merely  in  reference  to  the  formal  execution  of  the  contract,  with- 
out intending  to  shake  or  effect  the  contract  by  it  ?  Did  he  intend  to 
accejot  the  terms  proposed,  whatever  might  be  their  legal  effect,  and  to 
suggest,  apart  from  these  terms  so  accepted,  that,  notwithstanding  he 
intended  to  stick  by  the  contract,  yet  according  to  his  view  of  its  legal 
effect,  the  sum  mentioned  would  bear  interest  from  the  date  ?  Or  did  he 
again  intend,  whilst  on  the  one  hand  he  distinctly  accepted  the  terms 
proposed,  to  suggest  on  the  other  without  setting  the  contract  again 
afloat,  that  in  fairness  the  defendant  ought  to  pay  interest  on  the 
$2000  ? 

If  he  intended  to  incorporate  the  matter  of  the  interest  with  his  accep- 
tance, in  such  manner  as  that  his  principal  could  not  be  compelled  to 
convey  upon  the  foot  of  his  acceptance,  unless  the  interest  should  be 
paid — if  this  be  the  proper  construction  of  his  letter,  taken  all  together 
— then  he  has  accepted  one  set  of  terms,  when  another  was  proposed  ; 
and  not  having  accepted  the  terms  proposed,  the  defendant  is  not  bound. 
The  sum  which,  by  her  offer,  she  would  be  bound  for,  on  the  last  day  of 
January,  1832,  (for  she  would  be  entitled  to  the  whole  month  to  make 
the  payment,)  would  be  $2000.  The  sum  accepted  for,  ($2000,  with 
interest  from  the  date  of  the  correspondence,)  would  be  $2,128.  If  her 
undertaking,  in  the  agent's  acceptation,  were  reduced  to  the  =^form  r*ig3 
of  a  bond,  she  would^  if  she  failed  to  take  it  up  at  maturity,  be  •- 
liable  for  interest  on  $2,128  from  the  last  of  January,  1832  ;  whereas, 
by  her  own  offer,  she  would,  in  case  of  failure  to  pay,  only  be  liable  for 
interest  on  $2000,  from  the  last  of  January,  1832.  If  this  be  the  niter- 
pretation  of  the  agent's  letter,  there  is  no  ground  for  the  bill.  Gibbs  v. 
Vol.  I._8 


114  SOUTH    CAROLINA   EQUITY    REPORTS.  [*163 

Chrisholme,  2  N.  &  M'C.  28.  The  plaintiff  cannot  enforce  payment 
of  the  $2,128,  because  it  was  never  proposed  ;  nor  could  the  defendant 
compel  execution  of  titles,  because  she  has  never  bound  herself  to  pay 
$2,128,  in  consideration  of  which  alone  has  the  plaintiff's  agent  agreed  to 
convey. 

This  was  the  interpretation  I  at  first  put  on  the  letter  of  the  agent.  I 
felt  inclined  towards  it  for  a  considerable  time  ;  but  I  fear  I  was  too 
much  disposed  to  entertain  it,  by  my  conviction,  that  this  is  a  hard  case. 
Still,  although  I  have,  upon  reflection,  adopted  a  different  construction, 
my  first  view  comes  and  goes  on  my  mind  :  and  I  shall  feel  real  pleasure, 
if  the  Supreme  Court  should  reverse  my  final  decision. 

The  agreement  itself,  its  formal  execution,  its  legal  effect,  and  sugges- 
tions of  additions  to  it,  are  all  distinct  things. 

The  plaintiff's  agent,  in  the  title  under  consideration,  first  of  all 
takes  up  the  proposals  made  to  him,  distinctly  recapitulates  them,  and 
then  distinctly  accepts  them.  This  over,  and  (as  I  conclude)  considering 
the  bargain  closed,  he,  as  a  separate  matter,  takes  up  the  subject  of  its 
formal  execution ;  and  here,  casually  as  it  would  seem,  and  not  as  a  sub- 
stantive part  of  the  agreement,  mentions  the  interest.  This  mention  of 
interest,  I  am  constrained  to  think,  does  not  touch  the  terms  already 
accepted  by  him.  It  goes  no  more  to  affect  the  terms  distinctly  offered, 
and  distinctly  accepted,  than  if  it  had  been  made  in  another  letter,  of  a 
date  subsequent  to  that  containing  the  acceptance.  And  if  the  agent  had 
closed  his  letter  of  the  4th  March  with  a  bare  acceptance,  and  had,  the 
next  day,  written  concerning  giving  possession,  taking  bonds,  the 
interest,  &c.,  no  one  will  contend  that  the  contract  would  not  have 
stood. 

This  must  be  the  decision,  if  we  regard  the  agent,  in  speaking  of 
interest,  as  asking  directions  respecting  the  formal  execution  of  the 
contract. 

-s-,  p^T  *  Again,  I  think  the  same  decision  must  be  made;  if  we  regard 
■^  the  agent,  in  mentioning  the  interest,  as  intending  to  confine  him- 
self to  the  legal  effect  of  the  terms  he  had  already  accepted.  To  put  the 
contract  by,  as  it  were,  he  takes  the  terms  up,  one  by  one,  and  assents  to 
them  all.  Having  bound  his  principal  to  these  terms,  whatever  their 
legal  effect  might  be — having  bound  her  to  take  the  contract  "  for  better 
for  worse,"  I  do  not  feel  at  liberty,  upon  light  grounds,  to  conclude  that 
he  meant,  by  mentioning  the  interest,  to  undo  all  that  he  had  done  :  and 
if  he  meant  to  speak  merely  to  the  legal  effect  of  what  he  had  done,  and 
gave  a  wrong  opinion,  that  does  not  alter  or  undo  what  he  had  done. 
Underhill  v.  Horwood,  10  Ves.  209,  228.  The  opinion  is  wrong,  on  the 
contrary,  merely  because  the  act  done  is  too  valid  to  be  done  away  or 
altered.  jSTow,  to  test  whether  a  misconception  of  the  legal  effect  of  this 
contract  entertained  by  one  of  the  parties  at  the  time  of  making  it,  is  to 
vitiate  it,  let  us  suppose  the  bill  filed  against  the  party  who  entered  into 
the  contract  laboring  under  the  misconception.  Would  that  party  be 
exonerated  from  his  distinct  explicit  undertaking,  merely  on  the  ground 
of  a  mistake  in  law  ?  Such  a  doctrine  has  been  once  hinted  in  this  Court, 
and  the  hint  was  borrowed  from  one  of  the  highest  sources  in  the  Union. 
Lownds  V.  Chisholme,  2  M'C  Ch.  463  ;  Hunt  v.  Rousmanier,  8  Wheat.' 
215-16.     It  is  not,  however,  a  necessary  point  in  the  case.     I  am  not 


*164]  CHARLESTON,    APRIL,    IS 33.  115 

prepared  to  acknowledge  such  a  doctrine.  Even  in  criminal  cases,  every 
man  is  held  bound  to  know  the  law  :  and  if  guilty  of  violating  it,  will  be 
punished,  although  he  does  not  know  it — even  if  the  punishment  extends 
to  life.  Lyon  v.  Richmond,  2  John.  Ch.  51,  60.  Society  cannot  go  on, 
if  this  policy  be  relaxed.  How  then,  in  matters  of  meum  and  tuinn,  in 
this  Court,  or  any  other,  can  any  one  claim  exemption  for  the  legal  con- 
sequences of  his  acts  ? 

Once  more  :  the  expression  about  interest,  may  be  regarded  as  a  sug- 
gestion that  although  the  terms  ])roposed  were  distinctly  accepted,  and 
would  be  abided  by,  yet,  in  fairness,  interest  should  be  added.     Now,  if 

A.  offer  B.  in  writing,  $500  for  his  land,  payable  in  twelve  montlis,  and 

B.  replies  in  writing,  "  I  accept  your   offer,  but,  nevertheless,  when  we 
come  to  draw  your  bond,  I  think  you  should  make  it  bear  interest  from 
the  date  :"   would  this  suggestion,  entirely*  distinct  from  the  well  r^^i^r 
understood   bargain  of  the  parties,  set  the  contract  afloat?     I  L 
think  not. 

There  is  one  more  view :  we  may  regard  the  agent  as  accepting  the 
•terms,  whatever  they  were  ;  but  inquiring  whether  the  defendant  under- 
stood herself  as  offering  to  pay  interest ;  and  this,  with  an  intention  of 
ascertaining  how  the  bond  was  to  be  drawn.  In  this  interpretation  of 
the  agent's  letter,  the  contract  must  stand. 

Upon  the  whole,  I  am  of  opinion  the  contract  is  valid.  The  defend- 
ant has,  however,  questioned  the  plaintiff's  title.  A  reference  must.be 
ordered  :  on  the  coming  in  of  the  report,  a  final  decree  will  be  pro- 
nounced. 

It  is  for  the  present  ordered,  that  the  Commissioner  do  inquire  and 
report  whether  the  plaintiff  has,  and  can  convey  to  the  defendant  an  un- 
incumbered and  perfect  title  in  fee,  to  the  land  described  in  the  bill,  as 
the  subject  of  contract ;  in  this  reference,  the  plaintiff  to  be  the  actor. 

I  am  inclined  to  throw  the  costs  on  the  plaintiff,  but  shall  reserve  that 
question  until  the  coming  in  of  the  report. 

Elliott,  for  the  defendant,  argued  that  before  the  Court  would  enforce 
a  contract  by  letter,  it  must  be  shown  from  the  letters,  and  not  by 
evidence  aliunde,  that  an  agreement  in  all  its  parts  has  been  concluded. 
The  letters  must  be  taken  together,  and  considered  as  constituting  a  con- 
tract complete  in  itself,  and  not  requiring  further  terms  or  explanations. 
Construe  the  two  letters  with  each  other,  and  there  appears  to  be  some- 
thing requiring  further  explanation  or  stipulation  of  some  sort.  The 
letter  of  acceptance  sets  up  a  new  and  distinct  term  from  any  contained 
in  the  proposal,  and  therefore  sets  the  contract  afloat.  He  cited  and 
commented  on  Bunch  v.  Blisby,  2  Madd.  19  ;  Stratford  v.  Bosworth,  2 
Ves.  &  Beames,  374  ;  3  Mer.  449  ;  2  Sim.  &  Stewart,  194. 

Pe.ttigru,  contra,  insisted  that  the  letter  of  the  defendant  contained  the 
terms  of  a  good  contract,  and  it  was  only  necessary  that  it  should  have 
been  accepted,  to  make  it  obligatory  on  both  parties.  This  was  done  in 
so  many  words,  by  the  letter  in  reply.  The  objection  is  taken  from  the 
words  in  parenthesis,  in  regard  to  the  interest :  they  are  in  a  subsequent 
part  of  the  letter,  after  the  acceptance,  *and  form  no  part  of  the  r*i  gg 
agreement  itself.  They  were  used  in  relation  to  the  execution  of  *- 
the  agreement  already  assented  to,  and  as  explanatory  of  its  meaning,  or 


116  SOUTH   CAROLINA   EQUITY   RErORTS.  [*166 

as  giving  a  legal  construction  to  the  contract.  3  Yes.  265  ;  5  Yin.  Ab. 
527  ;  Sugclen's  Law  of  Yeudors,  59,  60  ;  9  Yes.  351 ;  Kennedy  v.  Lee, 
3  Mer.  451. 

O'Xeall,  J.  I  agree  with  the  Chancellor,  that  the  defendant  is  bound 
to  perform  her  contract  of  purchase.  A  contract  to  sell  and  buy  laud, 
may  just  as  well  be  made  by  letters  as  by  any  other  agreement  in  writing. 
The  only  object  of  requiring  written  evidence  of  such  an  agreement,  is  to 
prevent  the  possibility  of  fraud  or  perjury  in  setting  up  loose  conversa- 
tions for  contracts  ;  so  that  the  consideration  to  be  paid,  the  time  of 
payment,  and  a  description  of  the  property  to  be  sold,  appear  from  any 
written  memorandum  signed  by  the  party  to  be  charged,  sufficiently 
certain  to  enable  the  court  to  decree  a  specific  performance,  it  is  all  that 
is  necessary.  The  assent  of  the  parties  to  these  essentials,  can  just  as 
well  be  gathered  from  the  proposal  to  buy,  and  the  acceptance,  by  letters, 
as  if  formal  acticles  were  executed  between  them.  In  the  case  of  Ken- 
nedy I'.  Lee,  3  Mer.  449,  the  Lord  Chancellor  states  the  rule  to  be  "  that 
the  party  seeking  the  performance  of  such  an  agreement,  is  bound  to  find 
in  the  correspondence,  not  merely  a  treaty,  still  less  a  proposal  for  an 
agreement,  but  a  treaty,  with  reference  to  which,  mutual  consent  can  be 
clearly  demonstrated,  or  a  proposal  met  by  that  sort  of  acceptance  which 
makes  it  no  longer  the  act  of  one  party,  but  of  both."  According  to 
this  rule,  which  is  fully  sustained  by  the  cases  of  Stratford  v.  Bosworth, 
2  Yes.  &  Beames,  340  ;  and  Huddleston  (;.  Briscoe,  11  Yes.  583.  ;  this 
case  was  well  made  out  by  the  letter  of  the  defendant  proposing  to  buy, 
and  that  of  the  plaintiff's  agent  accepting  her  proposition. 

The  only  question  made,  is  whether  the  letter  of  the  plaintiff's  agent 
did  not  insist  on  a  new  or  additional  term  to  the  proposal  of  the  defend- 
ant.    I  entirely  agree  with  the   Chancellor,  that  such  a  fact,  if  it  were 


■■HI-] 


true,  would  *be  fatal  to  the  complainant's  claim  for  a  specific  per- 


formance. For  then  there  would  be  no  acceptance  of  the  defend- 
ant's proposal  on  the  part  of  the  plaintiff,  nor  would  there  be  any  assent 
on  the  part  of  the  defendant,  to  the  new  term.  In  the  language  of  the 
Lord  Chancellor  in  Huddleston  u.  Briscoe,  "  the  letters  would  not  import 
a  concluded  agreement." 

But  the  proposition  of  the  defendant  to  buy,  is  distinctly  and  in  terms 
accepted,  upon  the  terms  which  she  stated.  The  agent,  in  another  part 
of  his  letter,  speaking  of  the  execution  of  titles,  the  cash  payment,  and 
the  security  for  the  payment  to  be  made  in  January,  1832,  in  reference  to 
the  letter,  says  "  I  presume  with  interest."  These  words  were  obviously 
used  as  his  construction  of  the  contract  which  he  had  accepted,  and 
which  he  supposed  the  defendant  to  have  intended  by  her  offer.  But 
they  are  not  made  a  condition  on  which  the  acceptance  is  to  depend.  It 
is  what  in  common  fairness  and  in  the  usual  course  of  such  contracts,  he 
supposed  the  defendant  to  have  intended  ;  still,  however,  leaving  it  per- 
fectly optional  to  the  defendant  to  admit  or  deny  his  construction,  with- 
out affecting  the  legal  effect  of  the  contract,  which  he  had  accepted  in 
such  terms,  and  so  unconditionally  as  to  prevent  the  plaintiff  from  refusing 
to  comply  with  it. 

In  Kennedy  v.  Lee,  the  Lord  Chancellor  says,  "I  do  not  mean 
(because  the  cases  which  have  been  decided  would  not  bear  me  out  in 


*1  «^ 


167]  CHARLESTON,    APRIL,    1833.  117 

going  so  for)  that  I  am  to  see  that  both  parties  really  meant  the  same 
precise  thing,  but  only  that  both  actually  gave  their  assent  to  that  pro- 
position which,  be  it  what  it  may,  de  facto,  arises  out  of  the  correspond- 
ence." There  can  be  no  doubt  that  both  parties  in  this  case,  have 
assented  to  the  proposition,  that  the  defendant  should  buy  the  land  for 
$6,000  cash,  and  $2,000  in  January,  1832.  The  payment  of  $2,000  in 
January,  1832,  the  defendant  very  probably  intended  should  not  bear 
interest  until  due ;  and  the  plaintiff,  that  it  should  bear  interest  from  the 
day  on  which  possession  was  delivered.  This,  however,  after  the  propo- 
sition of  the  defendant  was  accepted  by  the  plaintiff,  was  a  matter  of 
legal  ^construction  of  the  contract  to  which  they  had  agreed.  r-^i/.Q 
They  might  differ  about  it,  as  widely  as  they  pleased  ;  one  of  them  L 
could  not  by  setting  up  what  she  had  intended,  destroy  the  contract. 
The  legal  effect  of  it,  and  the  intention  of  the  parties,  were  to  be 
gathered  from  the  terms  of  the  defendant's  proposal  to  buy,  which  the 
plaintiff  had  accepted  ;  and  not  from  her  construction,  expressed  even  at 
the  time,  but  after  she  had  given  her  assent  to  the  proposition. 

I  am  hence  satisfied,  that  the  defendant  was  properly  held  to  be  bound 
to  comply  with  the  contract  of  purchase. 

On  the  argument  here,  it  was  conceded  that  the  plaintiff's  title  was 
good,  and  that  there  was  no  necessity  to  refer  that  matter  to  the  Com- 
missioner.    That  part  .of  the  decree  must  be  therefore  reversed. 

It  is  ordered  and  decreed,  that  the  complainant  deliver  to  tha  Commis- 
sioner, for  the  defendant,  her  deed  of  conveyance  of  the  land  to  the 
defendant,  produced  on  the  trial ;  that  she  do  also  deliver,  or  tender 
forthwith,  the  possession  of  the  land  to  the  defendant. 

It  is  further  ordered  and  decreed,  that  the  defendant  do  pay  to  the 
complainant  the  sum  of  $8,000,  with  interest  on  $6,000,  from  the  5th 
March,  1831,  and  on  $2,000  from  the  1st  day  of  February,  1832  ;  and 
the  costs  of  this  case. 

Johnson,  J.,  concurred. 
Harper,  J.,  absent. 


*P.  C.  Plumkett,  in  trust  for  MarCxAret  Wood,  v.  Ed.  Carew,  r^igg 
Assignee  of  John  Lewis. 

The  plaintiff  made  a  shipment  on  joint  account  with  L.,  who  sold  and  invested  the 
proceeds  in  merchandise  shipped  on  board  the  brig  Eliza,  and  gave  the  plaintiif  a 
written  acknowledgment  to  thisafifect;  L.  stopped  payment,  and  assigned  his 
estate,  including  the  cargo  of  the  Eliza,  to  the  defendants,  as  trustees  for  the 
payment  of  certain  preferred  debts,  who  sold  the  same,  and  applied  the  proceeds 
according  t«  the  deed  ;  on  a  bill  filed  by  the  plaintiff  against  tlie  assignees,  Held, 
that  the  plaintiff"  was  an  equitable  owner  of  the  cargo  to  the  extent  of  his  invest- 
ment, and  that  if  the  defendants  had  paid  away  the  proceeds  with  a  knowledge 
of  the  plaintiff's  equity,  they  were  liable  to  account  to  him,— Reference  ordered 
to  ascertain  whether  the  defendants  had  paid  away  the  funds,  and  if  so,  whether 
with  or  without  a  knowledge  of  the  plaintiff's  claim.  [*171] 
The  bill   states  that  the  plaintiff  made  a   shipment   of  ninety-seven 

whole,  and  eighteen  half  tierces  of  rice,   on  joint  account  with  John 


118  SOUTH   CAROLINA  llQUITY   REPORTS.  [*169 

Lewis,  in  January,  1820 ;  that  in  March  following,  Lewis  gave  him  a 
written  acknowledgment,  setting  forth  that  the  moiety  of  the  sales  of  the 
rice  amounted  to  $1,225  75,  and  that  the  same  was  invested  in  the  return 
.cargo  of  the  brig  Eliza,  in  which  the  plaintiff  was  interested  to  that 
amount.  That  on  the  4th  of  August,  1820,  Lewis  stopped  payment, 
and  assigned  his  estate  to  Joseph  Trescott  and  Edward  Carew.  That 
the  cargo  of  the  Eliza  came  to  the  hands  of  the  assignees,  and  they  sold 
it.  That  he  has  often  applied  to  the  assignees  for  payment,  but  without 
effect,  and  that  they  ought  to  account  to  him  as  a  part  owner  of  the 
cargo  of  the  Eliza.  The  bill  contains  many  other  charges  ;  it  was  filed 
the  nth  of  June,  1824. 

Lewis  died  soon  afterwards,  and  Joseph  Trescott,  one  of  the  assignees, 
died. 

The  answer  of  Edward  Carew  states  that  he  is  unacquainted  with  the 
dealings  between  the  plaintiff  and  John  Lewis,  and  knows  nothing, 
except  that  after  the  plaintiff's  bill  was  filed,  this  defendant  had  some 
conversation  with  Lewis  on  the  subject,  and  to  the  best  of  his  recollec- 
tion, Lewis,  in  a  conversation,  after  the  filing  of  the  bill,  did  not  deny 
that  he  was  indebted  to  the  plaintiff,  in  tlie  sum  mentioned  in  the  bill,  or 
in  some  such  sum,  but  as  a  general  creditor  only.  That  he  has  no  know- 
ledge of  the  shipment.  That  Lewis  was  half  owner  of  the  Eliza,  and 
one-third  owner  of  the  cargo.  That  on  the  4th. of  August,  1820,  he 
assigned  all  his  estate  to  the  defendant  and  to  Joseph  Trescott,  for  the 
payment  of  his  debts  in  the  order  therein  mentioned.  That  they 
accepted  the  assignment,  and  took  possession  of  the  goods  and  effects 
which  they  understood,  and  were  pointed  out  as  his.  The  brig  Eliza  was 
at  sea  when  the  assignment  was  executed.  They  placed  Lewis'  sliare  of 
^jwQ-|  the  vessel  and  cargo  in  the  hands  of  *Napier  &  Co.,  for  sale,  who 
-'  sold  them  openly  and  publicly,  and  though  the  plaintiff  was  in 
Charleston,  he  made  no  claim  to  the  cargo,  nor  even  gave  notice  of  his 
debt ;  and  the  defendant  never  heard,  till  after  the  bill  was  filed,  that 
Lewis  owed  him  a  cent.  That  the  trusts  of  the  assignment  were  to  pay 
custom  house  bonds,  then  promissory  notes  endorsed  by  this  defendant 
and  the  other  assignee,  Trescott ;  and  the  surplus  to  the  other  creditors — 
but  the  effects  did  not  pay  off  the  notes  ;  and  there  is  a  large  balance  due 
to  the  assignees. 

The  cause  came  before  Chancellor  De  Saussure,  at  Charleston,  March, 
1832. 

The  plaintiff  produced  the  memorandum  referred  to  in  the  bill — 
no  other  evidence  was  offered. 

The  Chancellor's  decree  declares  that  if  the  cargo  of  the  Eliza  came  to 
the  assignees'  hands,  they  are  bound  to  pay  to  Plunkett,  as  a  part  owner. 
And  he  ordered  a  reference,  to  ascertain  whether  the  wliole  of  the  Eliza's 
cargo  came  into  the  hands  of  t?lie  assignees,  and  what  amoun^  is  payable 
to  the  plaintiff,  and  to  inquire  into  the  fact  of  the  assignment  to  Mrs. 
Wood,  and  in  what  right  Plunkett  sues. 

From  this  decree  the  defendant  appealed,  and  insists, 

1.^  That  Plunkett  was  a  general  creditor  only  ;  that  his  merchant  hav- 
ing invested  his  money  in  goods,  gave  him  no  lien  upon  such  merchan- 
dize. 


*170]  CHARLESTON,  APRIL,  1833.  119 

2.  That  if  the  plaintiff  could  have  come  in  as  a  part  owner,  he  waived 
his  right,  by  not  making  his  claim  before  the  goods  were  sold. 

3.  That,  whether  the  assignees  take  a  benefit  under  the  assignment  or 
not,  the  rights  of  the  parties  are  the  same.  And  that  after  the  assets 
have  been  disbursed  pursuant  to  the  assignment,  the  plaintiff  can  neitlier 
make  the  creditors  refund,  nor  the  assignees  answerable  to  him  out 
of  their  own  estates. 

4.  That  the  plaintiff's  remedy,  if  any,  is  by  an  action  at  law. 

Pettir/ru,  for  the  defendants,  contended,  1.  As  to  the  character  and 
effect  of  the  memorandum — it  was  a  mere  acknowledgment  by  Lewis,  of 
his  liability  and  promise  to  account ;  it  created  a  debt,  for  the  enforce- 
ment of  which  *an  adequate  remedy  exists  at  law  ;  but  it  vests  r^iKi 
no  right,  either  legal  or  equitable,  in,  and  creates  no  lien  on,  the  ^ 
the  cargo.  This  is  not  like  the  case  of  goods  sent  to  a  factor  for  sale, 
and  found  in  specie  at  his  insolvency  ;  for  there  the  title  is  complete  in 
the  shipper; — but  here,  the  bills  of  lading,  invoices,  &c.,  are  all  in  the 
name  of  Lewis.  In  the  case  of  consignor  and  consignee  on  a  credit  sale, 
the  right  of  stoppage  in  transitu  exists,  but  it  could  not  avail  the  plain- 
tiff when  the  goods  are  in  the  hands  of  the  consignee,  and  after  a  sale  of 
assignment  of  them  :    1  Atk.  245  ;   1  Wash.  C.  C.  Rep.  212  ;   6  E.  17. 

2.  Admitting  that  the  plaintiff  has  an  equity  in  the  goods,  can  this 
equity  be  set  up  against  the  assignment  ?  Is  not  the  declaration  of  trust 
an  assignment  for  valuable  consideration  ?  It  must  operate  as  such,  or 
as  nothing.  Which  is  to  be  preferred,  the  open  or  the  secret  assignment  ? 
The  acquiescence  of  the  plaintiff  in  the  sale  of  the  goods,  shows  that  he 
did  not  regard  himself  as  having  an  interest  in  them,  and  is  conclusive 
against  him  ;  12  John.  301  ;  and  the  assignee  having  executed  the  trust 
and  paid  away  the  funds,  should  not  now  be  chargeable. 

Hunt,  contra.  The  plaintiff's  claim  is  as  joint-owner,  and  for  an 
account  of  the  sale.  The  grounds  of  equitable  jurisdiction  are,  that  the 
property  cannot  be  followed  at  law,  and  discovery.  The  defendants,  as 
the  assignees  of  Lewis,  take  subject  to  the  equity  of  the  plaintiff,  as  part 
owner  :  and,  as  to  the  rule  that  one  standing  by  and  seeing  his  property 
sold,  is  concluded ;  it  only  means,  that  the  rights  of  the  purchaser  shall 
not  afterwards  be  disturbed  by  him — but  the  claim  here,  is  for  the  pro- 
ceeds of  the  sales,  to  which  the  plaintiff,  as  part  owner,  is  entitled. 

O'Neall,  J.  The  various  objections  raised  to  the  Circuit  decree, 
make  the  following  questions.  1st.  Is  the  plaintiff  on  the  case  proved 
on  his  part,  entitled  to  any  relief  against  the  defendants  ?  2a.  Ji  lie  is, 
are  the  defendants  bound  to  account  for  the  proceeds,  if  they  have  paid 
them  away  before  notice  of  his  claim. 

I  am  satisfied  that  the  plaintiff  is  properly  in  Court,  and  *entitled  j-*  j^2 
to  have  the  benefit  of  his  interest  in  the  cargo  of  the  Eliza,  if  the 
fund  is  still  in  the  hands  of  the  defendants,  or  if  it  has  been  paid  away 
after  notice  of  his  claim.  This  assumes,  however,  as  true,  that  the  riglit 
of  action  is  in  Plunkett  in  the  character  in  which  he  sues.  This  assump- 
tion may,  upon  the  examination  before  the  Commissioner,  turn  out  not  to 
be  well  founded,  and  if  so,  it  is  not  intended  that  the  defendants  should 
in  that  respect  be  prejudiced  by  it. 


120  SOUTH    CAROLINA    EQUITY    REPORTS.  [*172 

1.  There  can,  I  think,  be  no  doubt  as  against  Lewis,  that  the  plaintiff 
would  have  been  entitled  to  the  aid  of  this  Court,  to  have  given  hira  in 
specie,  or  in  an  account,  the  benefit  of  his  interest  in  the  cargo  of  the 
Eliza.  For  to  say  nothing  of  other  grounds  of  equitable  cognizance  of 
the  case,  which  I  may  have  occasion  to  notice  hereafter,  the  legal  right 
to  the  cargo  was  in  Lewis,  and  the  plaintiff's  right  to  participate  in  it, 
rested  altogether  in  agreement.  This  was  clearly  an  equity.  For  it  is 
no  objection  to  say,  you  might  have  sued  on  it  at  law.  There  are  many 
cases  you  may  sue  at  law,  and  yet  the  jurisdiction  in  equity  is  unques- 
tional)le.  This  is  pretty  much  the  case  in  all  cases  of  specific  perform- 
ance of  contracts  ;  at  law,  you  may  have  your  remedy  in  damages  ;  or  in 
equity,  for  specific  performance.  So,  when  there  is  a  contract  to  divide 
property  in  specie,  or  to  divide  the  proceeds ;  I  should  entertain  no 
doubt,  that  on  the  party's  refusing  to  perform  his  contract,  an  action  for 
damages  might  be  sustained  at  law  ;  and  in  equity,  that  a  bill  would  lie 
in  the  one  case  for  a  partition  of  the  property,  and  in  the  other,  for  an 
account  of  the  proceeds.  Under  the  agreement  of  Lewis,  the  com- 
plainant as  against  him,  might  possibly  have  obtained  an  actual  appor- 
tionment and  division  of  the  cargo.  If,  however,  that  was  doubtful, 
(which  I  do  not  think,)  there  can  be  no  doubt  that  he  would  be  entitled 
to  an  account  of  his  proportionate  share  of  the  cargo.  I  have  said  that 
the  legal  title  was  in  Lewis,  and  it  may  be  necessary  to  assign  the  rea- 
sons for  this  assertion,  before  I  proceed  further.  The  invoice  and  bills 
of  lading  were  in  his  name,  and  he  had  the  actual  possession  ;  and  all 
these  combined  together,  are  more  than  enough  to  give  a  legal  title  to 
merchandise.  The  plaintiff  was  merely,  by  a  contract  on  a  valuable  con- 
;(.,Ho-|  sideration,  entitled  to  a  share,  *in  proportion  to  the  amount  of 
-■  his  funds  invested.  This  gave  hira  the  right  in  equity  and  good 
conscience,  to  a  share  of  the  adventure.  The  defendants,  as  regards 
their  legal  rights  to  the«property,  stand  exactly  upon  the  same  footing 
which  Lewis  did  ;  and  I  apprehend  they  take  it  subject  to  the  equities 
which  existed  against  him,  and  must  account  for  it  as  he  would  have 
done,  unless  they  have  paid  away  the  proceeds  before  notice.  This 
qualification  constitutes  the  only  difference  between  him  and  them.  For 
they  represent  him,  and  are  not  entitled  to  any  privileges,  (with  the 
exception  I  have  already  made)  which  he  could  not  claim.  For  the  pur- 
poses of  this  question,  they  are  to  be  regarded  as  volunteers.  I  proceed 
now  to  show,  that  as  against  the  defendants,  the  doctrines  of  the  Court 
of  Equity,  sanctioned  by  the  authority  of  repeated  decisions,  sustain  the 
position  that  the  complainant  is  entitled  to  relief  in  this  Court,  on  the 
agreement  of  a  proportionate  share  of  the  cargo  of  the  Eliza.  In  the 
case  of  Legard  v.  Hodges,  the  Lord  Chancellor  states  the  general  rule 
as  a  maxim  in  equity,  "that  whenever  persons  agree  concerning  any 
particular  subject,  that,  in  a  Court  of  Equity,  as  against  the  party  him- 
self and  any  claiming  under  him  voluntarily  or  with  notice,  raises  a  trust;" 
1  Yes.  jr.  47 8.  This,  as  a  general  rule,  is  perhaps  a  little  too  broadly 
stated,  for  it  is  not  intended  by  it  to  say,  that  a  mere  personal  contract 
or  agreement  would  create  a  trust,  and  give  the  Court  of  Equity  juris- 
diction. But  if  the  agreement  is  intended  to  operate  on  a  subject  or 
property  specifically,  so  as  to  create  an  interest  in  the  thing  itself,  it 
would  fall  properly  under  the  rule.     In  the  case  in  hand,  the  defendant's 


*173]  CHARLESTON,    APRIL,    1833.  121 

principal  agrees  with  the  plaintiff,  that  he  should  have  an  interest  in  the 
brig  Eliza's  cargo,  in  proportion  to  the  sum  of  $1225  57  of  his  funds 
invested.  This  agreement  was  intended  to  operate  on  the  cargo  itself, 
and  makes  the  plaintiff"  the  equitable  owner  to  that  extent,  and  the 
defendant's  principal,  a  trustee,  holding  the  legal  title  for  the  use  created 
by  his  own  agreement. 

This  is  analogous  to  the  case  of  a  bill  filed  for  an  account  and  distri- 
bution of  prizes  captured  by  a  privateer,  among  the  officers,  crews,  and 
owner,  according  to  the  articles.  In  such  a  case  there  is  no  doubt  of 
the  equity  jurisdiction,  and  *for  a  precedent  of  such  a  case,  I  refer  r-t^^ni 
to  the  case  of  Good  v.  Blewitt,  13  Yes.  397  ;  and  for  another  of  a  •- 
similar  character,  where  an  account  was  claimed  by  officers  of  the  army, 
of  prizes  under  the  King's  grant,  I  refer  to  the  case  of  Brown  v.  Harris, 
13  Ves.  552.  The  jurisdiction  in  these  cases  was  sustained  on  the  prin- 
ciple, that  the  agreement  in  the  one,  and  in  the  other  the  grant,  gave  the 
claimants  a  right  to  shares  in  the  prizes  themselves,  and  hence  that  they 
were  entitled  to  the  account  as  co-tenants  The  principle,  I  take  it, 
reaches  this  case  ;  the  agreement  here,  gives  an  interest  in  the  cargo 
itself,  and  in  ecjuity,  Lewis  and  the  plaintiff  are  co  tenants.  The  case  of 
Weymouth  v.  Boyer,  1  Ves.  jr.  416,  it  seems  to  me  is  the  very  case  before 
the  Court,  and  it  has  the  singular  advantage  of  being  decided  in  Chan- 
cery, by  one  of  the  most  eminent  of  the  English  Law  Judges,  Mr.  Justice 
Buller,  sitting  for  the  Lord  Chancellor.  Bryant  and  Tewksbury  were 
indebted  to  Weymouth ;  he  pressed  Bryant  for  payment,  and  he  agreed  to 
sell  him  45  hogsheads  of  tolDacco,  to  be  accounted  for  by  him  in  part  of 
his  demand.  An  invoice  was  mutually  signed  with  a  memorandum  of  the 
sale,  but  before  they  parted,  Weymouth  proposing  Holder  as  his  factor 
to  sell  the  tobacco,  Bryant  objected,  and  it  was  agreed  that  the  whole 
should  be  sold  by  Williams,  factor  for  Bryant,  and  an  agreement  for  this 
purpose  was  accordingly  signed  by  both.  The  l^bacco  was  subsequently 
delivered  to  Williams,  under  an  order  from  both  Bryant  and  Weymouth; 
Williams  sold  the  tobacco,  and  claimed  to  retain  the  proceeds  for  a  debt 
due  to  him  by  Bryant  and  Tewksbury.  It  was  contended  there,  as  it  has 
been  here,  that  the  remedy  was  at  law,  but  the  objection  was  overruled, 
and  the  reasons  of  Mr.  Justice  Bullei",  in  support  of  the  jurisdiction,  at 
p.  424,  are  a  full  answer  to  the  arguments  pressed  with  so  much  ingenuity 
on  us  in  this  case.  Upon  the  merits,  his  views  of  the  case  are  so  directly 
applicable  to  this,  that  they  may  be  stated  and  used  as  argument  for 
the  plaintiff. 

"  I  think,  upon  the  whole,  this  must  be  considered  as  a  case  in  which 
the  plaintiff  has  not  the  strict  legal  property,  but  rests  upon  an  agree- 
ment to  be  properly  enforced  here.  I  found  that,  on  observations  occur- 
ring upon  this  invoice,*  signed  by  the  plaintiff  and  Bryant.  The  rt-i^j^ 
intention  was,  that  there  sliould  be  an  actual  sale,  and  that  the 
property  really  should  pass  to  the  plaintiff ;  and  that  is  the  purport  ot 
the  memorandum  made  on  the  paper  stating  that  the  plaintiff  had  bought 
25  hogsheads  of  tobacco,  specified  by  numbers,  which  memorandum  was 
signed  by  both  parties.  I  should  have  said  that  was  a  transfer  of  the 
property,  if  it  had  rested  there.  That  was  dated  1st  July,  1785.  But 
it  is  apparent  upon  that,  that  they  altered  their  plan,  and  came  to  a  new 
agreement  before  they  parted,  which  it  was  competent  for  them  to  do, 


122  SOUTH   CAROLINA   EQUITY   REPORTS.  [*175 

and  the  reason  was,  the  question,  who  should  be  the  factors.  The  plaintiff 
had  spoken  to  Holder,  Bryant  objected  to  that,  and  said,  '  let  them  all 
be  sold  by  Williams,  and  we  will  account  for  the  45  hogsheads,'  an  dan 
agreement  was  accordingly  signed  for  that  purpose.  That  reduces  the 
case,  to  a  case  of  agreement  only,  in  order  to  let  the  friend  of  Bryant 
have  the  selling  of  the  goods.  If  it  rests  upon  agreement,  the  plaiutiif 
cannot  go  elsewhere." 

The  defendant  was  held  liable  to  account  for  the  proceeds  of  the  sale 
of  the  tobacco.  The  agreement  here,  as  in  that  case,  was  intended  to 
convey  property  to  the  plaintiff ;  but  it  does  not  have  that  eflPcct  in  law. 
The  plaintiff's  rights  are  in  agreement  only ;  and  it  follows,  that  his  only 
relief  is  in  equity;  and  he  is  entitled  to  an  account  for  his  share  of  the 
proceeds,  unless  his  laches  has  defeated  that  right.  This  brings  us  to 
consider  the  second  question. 

2.  The  assignment  is  to  Carew  &  Trescott,  of  all  Lewis'  estate, 
including  the  Eliza's  adventure,  which  is  set  down  at  $5,600.  It  may 
be  that  this  did  not  include  the  plaintiff's  interest,  and  if  so,  that  may 
possibly  present  another  question,  whether  the  defendants,  if  they  have 
possessed  themselves  of  the  plaintiff's  share  without  any  authority  from 
Lewis,  would  not  be,  in  any  event,  liable  for  the  proceeds  ?  If  there  is 
any  doubt  in  relation  to  this  matter,  the  plaintiff  may,  on  the  reference  if 
he  choose,  show  that  the  assignment  did  not  authorize  the  defendants  to 
^THn-i  take  possession  of  his  interest  in  the  cargo.  But  supposing,* 
-■  for  the  present,  that  the  assignment  covers  his  interest,  ai'e  the 
defendants  liable  to  account  for  the  proceeds,  if  they  have  paid  it  away 
under  the  trusts  of  the  assignment  before  notice  to  them  of  the  com- 
plainant's claim  ?  The  deed  of  assignment  directs  the  whole  proceeds 
of  the  assigned  property  to  be  applied  first  to  the  payment  of  certain 
preferred  debts,  and  the  surplus,  if  any,  to  the  payment  of  such  other 
debts  as  might  be  prefefred  within  six  months.  The  legal  estate  in  the 
cargo  of  the  Eliza  passed  to  the  defendants ;  the  plaintiff's  claim  was  his 
equitable  interest  under  the  agreement :  so  soon  as  this  was  brought  home 
to  the  knowledge  of  the  defendants,  if  they  then  had  the  cargo  or  its  pro- 
ceeds in  possession,  they  became  his  trustees,  and  liable  to  account  to 
him  for  his  interest.  But  if  they  had  paid  away  the  proceeds  before 
notice,  there  was  nothing  in  their  hands  on  which  the  trust  could  attach. 
For,  it  is  their  possession  of  that  which  in  equity  belongs  to  the  plaintiff, 
which  turns  their  legal  estate  into  a  trust  for  him.  If,  before  they  knew 
of  his  rights,  they  had,  in  the  discharge  of  their  duties,  parted  with  the 
-fund,  they  are  not  liable  to  account  to  him  for  that  in  which  they  had  a 
legal  estate,  without  any  knowledge  of  the  secret  trust  in  favor  of  the 
plaintiff.  The  facts  in  relation  to  this  view  of  the  case,  can  only  be 
ascertained  by  an  examination  to  be  had,  on  the  reference  to  the 
Commissioner. 

It  is  ordered  and  decreed,  that  the  Chancellor's  decree  be  reformed 
according  to  the  views  expressed  in  this  opinion ;  that  the  order  of  refer- 
ence, made  by  the  Chancellor,  be  carried  into  execution  ;  and  that  the 
Commissioner  do  examine  and  report  upon  the  matter  necessary  to  a 
correct  decision  of  the  defendant's  liability  to  account,  under  the  second 
question  discussed  in  this  opinion,  according  to  the  views  therein 
suggested. 

Johnson  and  Earle,  Js.,  concurred. 


*177]  CHARLESTON,    APRIL,    1833.  123 

*L.  E.  Dawson  v.  R.  B.  Scriven.  t^ih^, 

Thomas  E.  Scriven  v.  R.  B.  Scriven. 

The  lien  of  a  decree  in  Chancery,  commences  from  the  day  on  -which  it  is  delivered 
to  the  Commissioner,  and  filed  by  him,[*177] 

Before  Harper,  J.  (sitting  for  Chancellor  De  Saussure),  at  Coosa- 
whatchie,  January  Term,  1833,  who  made  the  following  report. 

"In  the  first  of  these  cases,  the  complainant  Lawrence  E.  Dawson, 
obtained  a  decree  against  the  defendant  at  January  Term,  1830.  The 
decree  was  signed  during  the  sitting  of  the  Court,  and  execution 
was  lodged  2d  February,  1830.  In  the  other  case  a  full  hearing 
was  had  at  the  same  term,  to  wit,  January,  1830  ;  but  the  case  being  a 
very  litigated  one,  and  the  points  numerous  and  important,  the  papers 
were  carried  home  by  the  presiding  Chancellor,  and  subsequently  to  the 
day  on  which  the  execution  in  Dawson  v.  Scriven  was  lodged  with  the 
sheritf,  a  decree  for  the  complainant  was  sent  down.  From  this  decree 
an  appeal  was  made,  but  was  abandoned,  in  February,  1831. 

"  A  motion  was  made  before  me,  at  the  present  term,  for  a  rule  or  order 
on  the  sheriff,  instructing  him  to  pay  to  the  complainant,  in  a  rateable 
proportion,  whatever  moneys  he  should  make  by  a  sale  of  the  defendant's 
real  estate;  on  the  ground,  that  the  decrees  should  both  be  considered  as 
having  equal  liens,  as  decrees  of  the  same  Term. 

"  The  motion  was  refused." 

The  complainant,  Thomas  E.  Scriven,  appealed  from  this  decision; 
and  renews  his  motion  in  the  Court  of  Appeals,  on  the  ground  taken  in 
the  Circuit  Court. 

Bailey,  for  the  appellant.  • 

Mazyck  and  Frost,  contra. 

O'IS'eall,  J.  The  case  of  Blake  v.  Bolan  and  others,  decided  that  a 
decree  in  equity  for  the  payment  of  money,  "  constitutes  a  lien  on  land 
like  a  judgment  at  law."  It  is  now  necessary,  in  following  out  the  prin- 
ciples of  that  ^decision,  to  fix  the  time  at  which  the  lien  commences,  r^j^-rg 
In  considering  this  question,  we  can  expect  but  little  aid  from  ad- 
judications of  the  English  Court  of  Chancery  ;  the  doctrine  of  the  liens  of 
decrees  is  peculiar  to  this  State,  and  is  practiced  mainly  upon  the  right 
given  by  the  act  of  1185  to  the  complainant  to  sue  forth  a  writ  in  the 
nature  o^aji.fa.  to  make  the  estate  of  the  defendant,  real  and  personal, 
liable  in  satisfaction  thereof.  It  will,  however,  be  of  service  in  examin- 
ing the  question,  to  ascertain  at  what  time  the  decrees  of  the  English 
Court  of  Chancery  take  effect.  According  to  strict  practice  in  England, 
a  decree  has  only  the  force  of  an  interlocutory  order,  until  signed  and  en- 
rolled: 2  Fomb.  on  Equity,  198.  According  to  rule,  the  decree  could 
not  be  signed  and  enrolled,  until  drawn  up,  and  a  copy  served  on  the 
clerk  of  the  adverse  party.  The  decree  so  drawn  up,  if  not  objected  to, 
is  entered  or  recorded,  and  then  put  on  the  file,  denoting  the  terra  at 
which  it  was  pronounced.  In  the  case  of  Clapham  v.  riiilips,  Finch, 
169,  the  Lord  Keeper  declared,  "  that  the  decrees  of  this  Court  uuglit  to 


124  SOUTH   CAROLINA   EQUITY   REPORTS.  [*178 

take  effect  from  the  time  the  judgment  of  the  Court  was  given  and  the 
decree  pronounced  in  the  cause  ;  and  that  the  death  of  the  parties  ought 
not  to  hhider  the  enrolment  thereof  in  some  convenient  time  :  for,  other- 
wise, it  might  create  new  trouble  and  expenses  to  the  party  living."  This 
decision,  as  between  the  parties  to  the  suit,  placed  the  effect  of  the  decree, 
as  commencing  from  the  time  judgment  was  pronounced  in  the  cause ; 
but,  as  against  third  persons,  the  decree  could  have  had  no  effect, 
except  from  the  enrolment.  So,  in  2  Fomb.  on  Eq.  200,  it  was  said  "a 
cause  was  finally  heard,  and  the  Court  took  time  to  consider  of  their  judg- 
ment ;  and  in  the  meanwhile  the  party  plaintiff  died — the  Court  gave 
judgment  nunc  pro  tunc,  and  ordered  that  their  decree  should  have  rela- 
tion to,  and  be  entered  upon  the  day  that  the  cause  was  finally  heard,  and 
in  this  decree  the  plaintiff  had  relief,"  Jones  f.  LeDavid,  Hill.  T.  1T91, 

in . .     The  effect  of  this  was,  as  between  the  parties,  to  make  the 

decree  operate  from  the  day  on  which  it  was  heard ;  upon  the  principle 
^,Hq-i  that  judgments  at  law,  after  verdict,  are  permitted*  to  be  entered 
-'  nunc  pro  tunc,  notwithstanding  the  death  of  one  of  the  parties. 
But  it  never  was  supposed  that  a  judgment  entered  nunc  pro  tunc,  could 
affect  the  rights  of  any  but  the  parties  to  it,  before  it  was  actually  signed. 
And  so  in  the  cases  in  Chancery  referred  to,  the  decrees  take  effect  from 
the  hearing,  or  the  time  the  decree  was  actually  pronounced,  as  may  best 
promote  the  ends  of  justice,  between  the  parties  ;  but  against  third  person, 
until  enrolled,  a  decree  would  be  interlocutory,  and  could  not  operate  to 
their  prejudice. 

In  this  State  it  is  not  the  practice  to  enrol  the  decrees,  and  it  has  been 
held  to  be  unnecessary,  for  the  reason  that  the  Chancellor  delivers  his 
decrees  in  writing,  signed  by  himself,  which  is  equivalent  to  an  enrol- 
ment. The  time  when  pronounced,  as  is  said  in  Clapham  v.  Philips, 
would  seem  to  be  proper  point  of  time  from  which  they  ought  to  take 
effect.  The  decree  may,  as  between  the  parties  themselves,  or  their  im- 
mediate representatives,  be  ordered  to  be  entered,  as  of  the  day  on  which 
the  cause  was  heard  But  this  is  as  far  as  I  am  prepared  to  give  retro- 
spective effect  to  a  decree. 

The  lien  of  a  decree,  as  I  have  before  said,  arises  from  the  fact,  that  by 
law,  the  party  entitled  to  a  writ  of  fi.  fa.,  to  make  the  real  and  personal 
estate  of  the  person  against  whom  the  decree  is,  liable  to  its  payment. 
If  the  right  to  take  out  execution  is  the  cause  of  the  lien,  can  it  com- 
mence until  the  decree,  which  authorizes  it  to  be  issued,  is  pronounced  ? 
As  long  as  the  judgment  of  the  Court  is  locked  up  in  the  breast  of  the 
Chancellor,  there  can  be  no  lien.  There  is  no  sum  ascertained,  which 
the  party  is  to  pay,  and  for  which  his  estate  maybe  made  liable.  It  may, 
or  may  not  be  liable  ;  and  until  this  uncertainty  is  ended,  it  would  be  vain 
to  talk  of  the  lien  of  a  judgment  existing.  A  recognizance,  until  es- 
treated, does  not  bind  land.  The  State  v.  Anderson,  decided  at  Colum- 
bia, December  Term,  1831.  It  is  a  debt  of  record,  but  because  the  right 
to  issue  execution  is  not  ascertained  and  fixed  until  the  order  for  estreat 
is  made,  it  has  no  lien.  The  principle  of  that  decision  applies  to  the 
*isni  qi^Gstion  before  us.  The  right  *to  issue  execution  to  satisfy  the 
-'  judgment,  in  both  cases  is  what  creates  the  lien. 

According  to  the  Statute  of  Frauds  and  Perjuries,  26  Car.  2,  chap. 
3;  sect.  13,  14,  15,  P.  L.  83,  the  clerk  who  signs  a  judgment  at  law,  is 


*180]  CHARLESTON,   APRIL,    1833.  125 

required  to  note  the  day  of  the  month  and  year,  on  which  he  si^-ns  it 
both  on  his  judgment  docket,  and  also  on  the  margin  of  the  judgment  •  and 
as  against  purchasers  bona  fide  for  valuable  consideration,  they  take  date 
and  have  a  lien,  only  from  the  day  on  which  they  are  so  signed.  The  set- 
tled practice  and  construction  of  these  sections,  in  this  State,  has  been  to 
regard  the  lien  of  the  judgment,  not  only  as  against  purchasers,  but  as 
between  creditors,  as  commencing  from  the  day  on  which  it  was  signed. 
Whether  this  construction  is  correct  or  incorrect,  it  is  not  now  necessarv 
to  inquire.  The  provision  in  relation  to  purchasers,  is  sufficient  for  my 
present  purpose.  If  the  lien  of  a  decree  is  to  commence  from  the  day  on 
which  a  cause  is  heard,  it  may  affect  the  rights  of  bona  fide  intermediate 
purchasers — for  it  sometimes  happens,  unavoidably,  from  the  intrinsic  diffi- 
culties involved  in  a  cause,  that  a  decree  is  postponed  for  months  after 
the  hearing.  Is  the  estate  of  the  defendant  to  be  locked  up  during  this 
time,  and  to  be  unalienable  both  by  himself,  and  by  operation  of  law  ? 
For  the  effect  of  the  constructive  lien  of  the  decree,  would  be  to  defeat 
any  sale  of  his  real  estate,  made  after  the  hearing  ;  and  thus,  either  to  pre- 
vent a  sale,  or  to  perpetrate  a  fraud  on  the  purchaser.  This  was  the 
very  mischief  intended  to  be  guarded  against,  by  the  statute  of  frauds 
and  perjuries,  at  law ;  and  are  we,  in  its  teeth,  in  establishing  a  rule  con- 
fessedly within  our  power,  in  opposition,  to  the  declared  will  of  the  peo- 
ple, through  their  representatives,  to  say,  that  a  decree  in  equity  shall 
have  a  constructive  lien,  which  has  been  wisely  denied  to  a  judgment  at 
law  ?  I  think  not.  The  objections  to  this  constructive  lien  are  not  yet 
exhausted.  Others  present  insuperable  difficulties  to  its  allowance.  Its 
effect  might  be,  to  postpone  a  judgment  at  law  obtained  before  it  was  pro- 
nounced, and  to  defeat  a  sale  under  it.  If  it  be  true,  that  it  binds  from 
the  day  on  which  the  case  is  heard,  a  judgment*  at  law,  obtained  r^iQ-. 
after  the  hearing,  duly  entered  up,  and  signed  by  the  clerk,  and  L 
eutitled  to  be  paid  perhaps  for  months,  out  of  the  debt  or  estate, 
suddenly  becomes  junior  to  that  which  had  no  existence  until  long  after 
its  own  legal  existence.  This  monstrous  absurdity  arises  from  allowing 
construction  to  stand  in  place  of  fact.  If  under  the  judgment  thus  ob- 
tained, the  land  of  the  debtor  is  sold  under  the  execution,  and  the  money 
paid  over  to  the  plaintiff,  the  constructive  lien  of  the  decree  would  defeat 
the  sale  and  deprive  the  purchaser  of  his  title.  So,  too,  in  the  cases  be- 
fore us,  if  Dawson,  under  his  decree,  had  sold  his  debtor's  estate,  and 
received  the  proceeds  before  the  decree  in  Thos.  C.  Scriven's  case,  he 
must,  if  the  doctrine  contended  for  is  correct,  upon  the  decree  being  pro- 
nounced in  the  latter  case,  have  refunded  to  it  its  proportion.  These  con- 
sequences of  a  constructive  lien,  must  satisfy  every  one  of  the  impropriety 
of  allowing  it.  But  it  is  said,  it  is  conceded  that  the  decree  could  not 
have  a  constructive  lien,  as  against  purchasers,  it  is  only  between  creditoi-s 
that  it  ought  to  have  this  effect.  There  can  be  no  such  distinction  made. 
The  decree  must,  for  all  purposes,  take  effect  from  the  day  on  which  the 
cause  was  heard  ;  or  from  the  day  on  which  it  is  pronounced.  From  the 
time  it  is  legally  to  be  regarded  as  a  decree,  it  has  its  lien,  and  there  is 
nothing  in  the  law  which  will  enable  us  to  postpone  it  as  to  one  class,  and 
give  it  effect  as  to  another. 

In  equity,  there  is  not  as  at  law,  a  technical  term  within  whicli  the 
Judge  is  alone  authorized  to  pronounce  judgment.     The  term  in  Equity 


126  SOUTH    CAROLINA    EQUITY    REPORTS.  [*18l 

is  for  the  hearing  of  causes,  and  the  Court  is  considered  as  always  open. 
Hence  it  is,  that  the  Chancellor  may  in  vacation,  as  well  as  during  his 
sittings,  pronounce  his  decrees.  He  is  regarded  as  in  Court,  to  pro- 
nounce judgment,  on  the  day  on  which  his  decree  is  delivered  to  the  Com- 
missioner, and  filed  by  him ;  and  from  that  time  it  is  a  decree,  and  its 
lien  commences.  This  rule  may  operate  hardly  in  this  and  similar  cases, 
but  these  partial  evils  will  not  bear  a  comparison  w'ith  those  which  would 
.result  from  giving  decrees  a  lien  from  the  day  on  which  the  causes  were 
^loo-i  heard.  The  prevention  of  such  consequences  as  *result  from  the 
-■  application  of  the  rule,  to  the  cases  under  consideration,  will  in 
future  be  in  the  power  of  the  Chancellors.  Cases  against  the  same  party 
at  the  same  Court,  in  which  decrees  for  the  payment  of  money  are  ex- 
pected to  be  made,  can  very  properly  be  held  under  advisement  together, 
until  judgment  at  the  same  time,  can  be  pronounced  on  them.  It  is 
ordered  and  decreed,  that  the  Circuit  decree  be  affirmed. 

Johnson  and  Earle,  Js.,  concurred. 


H.  MucKENFUss,  V.  JoHN  Desil  Heath,  and  another. 

A  trustee  under  a  deed,  who  has  the  management  of  the  estate  of  a  minor,  is  enti- 
tled to  commissions  under  the  Act  of  1745.  although  he  has  failed  to  make 
returns  to  the  office  of  the  Secretary  of  State.  [*183] 

The  plaintiff,  as  a  trustee  under  a  deed,  held  certain  real  and  personal 
estate  for  the  use  of  the  defendant  Heath,  during  his  minority  On  his 
attaining  full  age,  and  demanding  an  account  and  transfer  of  the  estate, 
this  bill  was  filed  to  obtain  the  order  and  sanction  of  the  Court,  to 
authorize  such  transfer  to  the  cestui  que  trust.  The  only  question  in 
the  case,  was  as  to  the  allowance  of  commissions  to  the  plaintiff.  From 
the  report  of  the  Master,  it  appeared  that  he  had  kept  a  regular  account 
of  his  transactions,  and  that  the  funds  had  been  promptly  and  faithfully 
invested.  The  plaintiff  claimed  as  a  compensation  for  his  services,  (under 
the  act  of  1145,  1  Brev.  Dig  392,)  five  per  cent.,  on  his  receipts  and  pay- 
ments ;  and  ten  per  cent,  on  the  dividends  of  the  stock  invested.  The 
claim  was  resisted  on  the  ground  that  regular  returns  had  not  been  made 
to  the  office  of  Secretary  of  State. 

Chancellor  De  Saussure  held,  that  a  trustee  cannot  demand  compen- 
sation for  his  services,  unless  by  positive  agreement,  or  under  some  sta- 
tutory provision — that  the  act  of  1745  allows  commissions,  on  condition 
that  the  trustee  makes  returns  to  the  Secretary  of  State's  office,  and  the 
*1831  P^'^^^^^i^  "0^  *having  complied  with  the  condition,  was  not  entitled 
-^  to  commissions. 

From  this  decree  the  plaintiff  appealed. 

Fepoon,  for  the  appellants,  referred  to  A.  A.  1T45,  P  L.  201  ;  1  Brev, 
Dig.  392  ;  P.  L.  495 ;  6  Dane,  602 ;  6  Bacon,  Ab.  Tit.  Stat.  K.  392  ; 
2  John.  379  ;  4  Mas.  T.  R.  318. 

De  Saussure,  contra,  cited  1  Ball  &  Beatty,  185  ;  1  John.  Ch.  27,  38 ; 
lb.  527. 


*183] 


CHARLESTON,    APRIL,    1833.  ]  27 


Harper,  J.  The  Act  of  Assembly  of  1745,  speaks  of  all  guardians 
and  trustees  who  shall  have  the  care,  management,  or  custody  of  the 
estates,  real  or  personal,  of  any  infants  or  minors  ;  and  by  the  eleventh 
clause,  it  is  enacted,  "that  all  and  every  executor,  administrator,  guardian 
or  trustee  "  shall  receive  commissions.  The  trustee  in  the  present  case 
seems  to  come  under  the  very  letter  of  the  act.  He  has  had  the  custody 
and  management  of  the  estate  of  minors.  It  has  been  supposed  that  the 
allowing  of  commissions  would  be  inconsistent  with  the  determination  of 
this  Court  in  the  case  of  Ravenel,  administrator  of  Cripps,  v.  the  As- 
signees of  Charles  Pinckney.  In  that  case  it  is  said,  "  that  the  act  of 
1745,  allowing  commissions  to  executors,  administrators,  guardians,  trus- 
tees, &c.,  embraces  only  that  species  of  agents  or  trustees  therein  specifi- 
cally mentioned,  or  such  as  are  under  the  authority  of  the  law,  and  the 
control  of  the  Courts.  Factors,  commission  merchants,  commercial 
agents,  and  assignees,  are  entitled  to  commissions,  from  the  usage  of 
trade.  But  the  private  agent  or  assignee  of  an  individual,  is  not  entitled 
to  any  such  claim,  unless  he  makes  it  part  of  his  contract."  We  are  of 
opinion,  that  in  this  case  the  trustee  is  such  an  one,  as  is  specifically 
mentioned  in  the  statute.  There  is  an  obvious  distinction  between  the 
agent  or  assignee  of  individuals  of  full  age,  and  capable  of  contracting 
for  a  proper  compensation  for  the  particular  services  he  requires  to  be 
rendered,  and  the  trustee  of  an  infant,  whose  services  may  be  required  for 
a  number  of  years.  It  is  true,  that  the  donor  who  settles  property  on  an 
infant,  might,  if  he  thought  *proper,  provide  for  a  compensation  r:^ici 
to  the  trustee.  But  still  the  trustee's  services  are  rendered  not  to  L 
him,  but  to  the  infant,  and  he  being  incapable  of  contracting,  the  law 
fixes  the  compensation.  The  law  favors  provisions  for  infants  ;  and  trus- 
tees in  such  cases,  are  to  be  encouraged  to  accept  and  act.  But,  what- 
ever the  reason  for  the  distinction  may  be,  the  law  seems  plainly  to  have 
made  it. 

We  think  the  Chancellor  mistaken  in  supposing  that  the  making  of 
regular  returns  to  the  Secretary  of  State's  office  is,  by  the  law,  made  a 
condition  on  which  the  trustee's  title  to  commissions  will  depend.  By 
the  executor's  law,  it  is  expressly  provided,  that  executors  or  adminis- 
trators, who  fail  to  make  returns,  shall  forfeit  their  commissions.  But 
there  is  no  such  provision  in  the  Act  we  are  considering.  This  Act  pro- 
vides that  executors  or  administrators,  who  fail  to  return  an  inventory 
and  appraisement,  shall  be  liable  for  all  the  debts  and  legacies  of  the  tes- 
tator or  intestate  ;  but  no  penalty  or  disability  is  imposed  on  a  guardian 
or  trustee,  who  shall  fail  to  return  his  accounts.  A  default  in  this 
respect,  may  subject  him  to  the  censure  of  the  Court.  Peiliaps,  if  it 
appeared  that  the  estate  had  suffered  injury  from  his  neglect,  it  might  be 
within  the  competency  of  the  Court  to  deprive  him  of  commissions,  as  a 
punishment.  But  in  the  present  case,  it  appears  that  the  estate  has  been 
managed  skilfully  and  faithfully  :  and  satisfactory  accounts  regularly  kept, 
though  not  returned. 

The  motion  to  reverse  the  decree  on  this  point,  is  therefore  granted. 

O'Neall,  J.,  concurred. 


128  SOUTH   CAROLINA   EQUITY   REPORTS.  [*1S5 


*185]  *Skilling  vs.  Jackson,  Administrator. 

Under  the  Act  of  1*191,  when  the  amount  claimed  does  not  exceed 
£100,  the  proceeding  may  be  bj  petition  instead  of  bill,  whether  the 
cause  be  litij^ated  or  not. 


The  Administratrix  of  Peter   D.   Foote,   deceased,   vs    C.   W.  Yan 
Ranst,  Administrator  of  Asa  and  John  Foote,  deceased. 

Where  a  party  has  neglected  to  file  exceptions  to  the  Master's  report,  within  the  time 
prescribed  by  the  rule  of  Court,  he  will  not  afterwards  be  permitted  to  file  them, 
unless  he  shows  by  affidavit,  that  he  was  prevented  from  filing  them  by  accident, 
mistake  or  surprise  [*185] 

O'Neall,  J.  The  defendant  neglected  to  file  exceptions  to  the  Mas- 
ter's report,  within  the  twenty-sixth  rule  of  Court ;  at  the  succeeding 
Court  he  moved  the  Chancellor  for  leave  to  file  exceptions,  but  made  no 
affidavit,  setting  out  the  causes  why  they  had  not  been  filed  :  the  Chan- 
cellor refused  the  motion  and  confirmed  the  report.  This  is  an  appeal 
from  his  decree,  on  a  great  variety  of  grounds,  arising  out  of  the  manner 
in  which  the  Master  has  stated  and  made  up  the  accounts.  But  in  the 
view  which  we  have  taken  of  the  case,  it  will  only  be  necessary  to  con- 
sider that  which  questions  the  correctness  of  the  Chancellor's  decision,  on 
the  motion  for  leave  to  file  exceptions.  For  if  the  Chancellor's  decision 
was  correct  in  that  respect,  it  is  useless  to  talk  about  errors  in  the  Mas- 
ter's report  on  the  accounts.  They  can  only  be  brought  regularly  to  the 
view  of  the  Court  by  exceptions.  Were  we  now  to  notice  them,  when 
they  were  not  presented  as  exceptions  regularly  filed  to  the  Master's 
report  before  the  Chancellor,  we  should,  in  effect,  abolish  the  settled 
practice  of  the  Court.  It  is  better,  therefore,  that  injustice  should  even 
be  done,  than  that  we  should  unsettle  a  practice  as  old  as  the  Court  of 
Equity  itself.  I  have  no  doubt  that  on  a  proper  case  being  made,  the 
*1861  C!hancellor  had  the  power,  and  would  have  ^permitted  the  excep- 
-"  tions  to  have  been  filed.  But  to  have  entitled  the  defendant  to 
this  indulgence,  it  was  necessary  that  he  should  have  shown  by  affidavit, 
that  he  was  prevented  from  filing  the  exceptions,  by  accident,  mistake,  or 
surprise.  The  case  of  Bowker  v.  Nickson,  3  31  ad.  Ch.  Rep.  226,  is  an 
authority  to  this  point.  The  Yice  Chancellor,  Sir  John  Leach,  says — 
"  It  is  necessary  objections  should  be  taken  to  the  draft  of  the  report, 
before  the  party  can  except,  in  order  that  the  Master  may  have  an  oppor- 
tunity of  reconsidering  his  opinion,  and  it  is  not  form,  but  substance  ; 
but  if,  by  accident  or  surprise,  that  has  not  been  done,  the  Court  will  give 
the  party  leave  to  except.  It  is  sworn  by  the  attorney,  that  the  clerk  in 
Court  did  not  send  to  him  the  warrant  which  had  been  served  fixing  a 
day  for  setting  the  draft  of  the  report.  If  that  be  so,  it  would  not  be 
just  to  exclude  the  party  from  objecting  to  the  report,  because  the  clerk 
in  Court  was  negligent.    Let  the  clerk  in  Court  make  an  affidavit  that  he 


*186]  CHARLESTON,    APRIL,    1833.  129 

did  not  send  the  warrant  to  the  attorney,  or  give  him  any  communication 
of  it.  If  such  affidavit  is  produced,  the  plaintiff  may  take  his  motion, 
paying  the  costs  of  it,  but  if  no  such  affidavit  is  produced,  the  motion 
must  be  dismissed  with  costs. 

The  practice  in  this  State  requires  notice  to  be  given  of  the  report  to 
the  parties  ;  and  in  Charleston,  the  party  dissatisfied  is  allowed  ten  days 
after  notice,  to  file  his  exceptions.  XJpon  these  being  put  in,  the  Master 
may,  and  ought  to  report  upon  them,  sustaining  or  overruling  them.  If 
objections  to  the  draft  of  the  report  are  matters  of  substance  and  not  of 
form,  the  exceptions  are  also,  for  the  very  same  reason,  matter  of  sub- 
stance and  not  of  form.  They  ought  to  be  filed  with  the  Master,  within 
the  time  limited  by  the  rule  of  the  Court,  in  order  to  give  him  the  oppor- 
tunity of  recording  his  opinion,  before  the  Court  is  called  on  to  pass  upon 
it.  If  they  are  not  filed  within  the  rule,  the  party  in  default  can  only  be 
relieved  from  the  consequences  of  his  neglect  by  showing  on  oath  that  he 
was  prevented  from  filing  them,  by  accident,  mistake,  or  surprise. 

The  defendant's  solicitor  had  ample  notice  of  the  report,  and  abundant 
time  afforded  to  him,  to  put  in  his  exceptions* — none  were  filed,  r:)i:-,n^ 
and  at  Court,  he  moved  for  leave  to  file  his  exceptions  without  ^ 
stating  a  case  which  made  out  either  accident,  mistake  or  surprise.  The 
plaintiff's  counsel  insisted  on  his  legal  advantage,  and  I  think  the  Chan- 
cellor was  right  in  refusing  the  motion  and  confirming  the  report. 

It  is  therefore  ordered  and  decreed  that  the  Chancellor's  decree  be 
affirmed. 

Johnson  and  Eakle,  Js.,  concurred. 

Hunt,  for  the  defendant. 


John  White  and  B.  F.  Hunt,  Assignees  of  Thomas  W.  Price,  vs. 
Charles  Follin  and  Caroline  C,  his  wife,  Admr.  and  Admx.  of 
John  Trescott,  deceased. 

Where  an  insolvent  debtor  rendered  in  a  schedule  of  his  estate,  in  -which  was  in- 
cluded a  bond  on  the  defendant's  intestate,  and  was  discharged  according  to  law, 
but  inadvertently  omitted  to  execute  an  assignment  of  the  schedule. — I/ekl,  that 
under  such  circumstances,  this  was  a  good  equitable  assignment  of  the  bond, 
■which  a  Court  of  Equity  would  set  up  and  decree  on  ;  but  that  the  insolvent  or 
(in  case  of  his  death)  his  legal  representative,  should  be  made  a  party  to  the  bill. 
[*187 

O'Neall,  J.  It  appears  that  Thomas  W.  Price  was  arrested  by  the 
sheriff  of  Charleston  under  a  ca.  sa.,  at  the  suit  of  Philip  Moore  and 
others  ;  that  he  filed  his  petition  for  the  benefit  of  the  Insolvent  Debtor's 
Act,  with  a  schedule  of  his  whole  estate  and  effects,  in  which  was  inclu- 
ded the  bond  on  the  defendant's  intestate.  That  he  was  ordered  to  be 
discharged,  on  executing  the  usual  assignment,  and  that  B.  H.  Hunt, 
John  White,  and  Dr.  Burgoyne  were  appointed  the  assignees ;  the  lat- 
ter declined  to  act.  Price  did  not  execute  the  assignment,  from  some 
mistake  or  omission  of  the  clerk,  but  was  discharged.  He  is  dead  and 
insolvent.  The  bill  is  against  the  defendants,  as  administrator  and  ad- 
YoL.  I.— 9 


130  SOUTH    CAROLINA    EQUITY    REPORTS.  [*187 

ministratrix  of  the  intestate,  Trescott,  for  the  payment  of  his  bond,  which 
the  plaintiffs  have  in  their  possession.  The  defendants  demurred  to  the 
bill,  and  amongst  other  causes,  they  insist,  that  the  administrator  or  other 
legal  representative  of  Thomas  W.  Price,  should  be  a  party.  The  Chan- 
*18S1  cellor  [Johnston]  sustained  the  demurrer  qn  this  *ground,  and 

-^  the  question  now  is,  whether  such  a  party  is  necessary. 
The  case  stated  in  the  bill,  makes  out  an  equitable  assignment  of  the 
cKose  in  action,  now  the  subject  of  controversy.  The  second  section  of 
the  Insolvent  Debtor's  Act,  after  directing  the  manner  in  which  the  Court 
shall  order  the  assignment,  to  be  made  "by  a  short  indorsement  on  the 
back  of  his  or  her  petition,  signed  by  the  petitioner,"  &c.,  provides,  "and 
by  such  assignment,  the  estate  interest  and  property,  of  the  lands,  goods, 
and  effects  so  assigned,  shall  be  vested  in  the  persons  to  whom  such 
assignment  is  made,  who  may  take  possession  of,  or  sue  for  the  same,  in 
his  or  their  own  name  or  names,  in  like  manner  as  assignees  in  commis- 
sions of  bankruptcies,  can  or  lawfully  may  do,  by  the  laws  or  statutes  of 
Great  Britain."  P.  L.  248. 

To  have  passed  a  legal  right  to  the  bond  to  the  plaintiffs,  and  to  have 
enabled  them  to  sue  on  it  at  law  in  their  own  names,  it  was  necessary  that 
the  assignment  should  have  been  executed  according  to  the  act.  This 
constitutes  their  only  legal  title,  and  not  being  able  to  make  it  out,  there 
is,  of  course,  no  assignment  of  the  bond  at  law.  But,  in  equity,  the  facts, 
that  the  formal  execution  of  the  assignment  was  omitted  by  mistake,  that 
the  insolvent  was  ordered  to  be  discharged  on  the  condition  that  he 
should  make  it,  that  he  has  the  full  benefit  of  the  order,  and  that  he 
delivered  the  bond  to  the  assignees  appointed  by  the  Court,  constitute  a 
good  equitable  assignment.  But  can  the  equitable  assignment  be  set  up 
and  decreed  upon,  until  the  assignor,  or  his  representative,  if  he  be  dead, 
is  a  party  ?  I  am  satisfied  it  cannot.  It  may  be  admitted,  as  the  law  cer- 
tainly is,  that  neither  at  law  nor  in  equity,  would  a  payment  or  release  by 
the  obligee  of  the  bond,  be  good  as  against  the  equitable  assignment, 
after  notice  of  the  assignment  to  the  obligor  :  Leigh  v.  Leigh,  1  Bos..  & 
Pul.  447,  Baldwin  v.  Billingstry,  2  Vern.  539  :  so,  too,  the  bond  would 
not,  after  such  an  assignment,  pass  under  a  commission  of  bankruptcy, 
Winch  V.  Kesley,  6  T.  K.  619.  But  still  these  positions  do  not  conclude 
the  question.  They  only  show,  that  the  equitable  rights  of  the  assignee, 
*1SQ1   ^^'^'  ^^  preserved  *both  at  law  and  in  equity,  against  the  fraud  and 

-I  combination  of  the  obligor  and  obligee.  At  law,  the  bond  must 
have  been  sued  in  the  name  of  the  obligee  or  his  legal  representative,  the 
legal  interest  being  in  him  ;  and  yet,  there  he  is  regarded  as  suing  for  the 
benefit  of  the  assignee,  and  a  payment  to,  or  release  by  him,  after  notice, 
would  be  adjudged  void.  In  equity  the  assignor  must  be  a  party,  as  was 
ruled  in  the  case  of  Cathcart  v.  Lewis,  1  Ves.  jr.  463.  That  was  a  bill 
by  the  assignee  of  a  judgment;  the  Lord  Chancellor  held,  that  the 
assignor  was  a  necessary  party.  The  reason  of  the  rule  appeal's  to  be, 
that  no  decree  can  be  given  upon  the  equitable  title,  until  the  legal  one 
is  before  the  Court.  The  proof  to  establish  the  assignment  cannot  be 
heard,  until  he,  who  is  thereby  to  be  deprived  of  the  legal  interest,  is 
legally  a  party.  For,  however  improbable  it  may  be,  yet  we  must  re- 
gard it  as  possible,  that  he  may  show  cause  why  he  should  not  be  divested 
of  it. 


*1S9]  CHARLESTOiN-,    APRIL,    1833.  131 

In  this  case  it  might  be  said,  how  is  it  known  that  Price  has  not  paid 
the  debts,  and  if  this  be  so,  he  or  his  representative  would  be  entitled  to 
receive  payment  of  the  bond,  instead  of  the  assignees.  This  is,  it  is 
true,  a  mere  possibility  which  I  am  sure  will  not  turn  out  to  be  true  in 
this  case,  but  this  case  is  to  constitute  a  precedent  for  future  cases,  in 
which,  instead  of  being  conjecture,  it  may  be  fact,  and  hence  here,  as  in 
the  case  which  may  occur,  the  assignor  or  his  representative,  must  be  a 
party.  I  admit  the  rule,  that  when  the  legal  estate  or  interest  is  repre- 
sented by  one  or  more  parties  befoi'e  the  Court,  that  it  is  not  in  all  cases 
necessary  that  every  one  having  an  interest  shall  be  a  party.  As  in  the 
case  of  the  executors  of  Brashers  v.  Van  Courtland,  2  J.  C.  R.  247, 
where  the  committee  of  a  lunatic  were  made  parties,  it  dispensed  with 
the  necessity  of  making  the  lunatic  a  party  ;  for  they  were,  in  equity,  his 
proper  representatives,  and  alone  entitled  to  be  heard  in  defence  of  his 
rights.  So  in  the  case  of  Cockburn  v.  Thomson,  16  Ves.  321,  where  a 
bill  was  filed  by  several  persons  on  the  behalf  of  themselves  and  all 
others,  proprietors  of  the  Philanthropic  Association,  it  was  held  that  the 
non-joinder  of  some  of  the  proprietors  would  not  prevent  the  Court  from 
giving  relief  to  the  *parties  before  it.  In  that  case  all  had  an  inter-  r:)ci  qn 
est  in  the  dispute,  yet  any  one  was  the  representative  of  the  entire  ^ 
legal  interest.  But  I  am  not  aware  of  any  case  in  which  the  Court  of 
Equity  has  given  relief  upon  the  equitable  title  or  interest,  where  the 
party  in  whom  the  legal  title  or  interest  was,  was  not  a  party. 

It  is  ordered  and  decreed,  that  the  Chancellor's  decree  sustaining  the 
demurrer,  be  affirmed,  and  that  the  complainants  have  leave  to  amend 
their  bill,  by  making  the  administrator  or  executor  of  Thomas  W.  Price, 
deceased,  a  party,  complainant  or  defendant,  as  they  may  think  proper — 
the  costs  of  the  demurrer  and  amendment  to  abide  the  event  of  the 
cause. 

Johnson,  J.,  concurred. 

Harper,  J.,  absent. 

H.  A.  De  Saiissure  and  Pettigru,  for  the  plaintiffs. 


Mary  I'On  Kinloch,  and  her  infant  children  v.  Jacob  Bond  I'On,  and 
the  devisees  of  Cleland  Kinloch,  deceased. 

Where  a  husband  in  pursuance  of  a  marriage  contract,  purchased  lands  and  had  the 
titles  made  to  the  trustees  under  the  settlement,  but  the  deeds  were  absolute, 
not  declaring  any  trusts,  and  the  husband  afterwards  sold  the  lands,  and  the 
trustees  at  his  request,  conveyed  to  his  purchasers,  and  he  received  and  squan- 
dered the  proceeds  :  it  was  held,  that  the  trustees  were  liable,  although  they  did 
no  other  act  showing  their  acceptance  of  the  trust.  [*  191] 

This  case  came  before  this  Court  on  appeal  from  the  decree  of 
Chancellor  Johnston,  at  Charleston,  making  the  defendants  liable  for  a 
trust  fund  which  had  been  wasted.  The  facts  of  the  case  and  the 
questions  made,  are  so  fully  set  forth  in  the  following  opinion,  as  to  render 
any  other  report  unnecessary. 


132  SOUTH   CAROLINA   EQUITY   REPORTS.  [*190 

Grimkie  and  Toomer,  for  the  defendants,  cited  and  relied  on  Kipps  v. 
Dennison,  4  John.  Kep.  23,  24,  26  ;  3  Atk.  480  ;  4  Yes.  628  ;  2  Mad. 
121  ;  B.  P.  C.  293;  2  Bro.  C.  C.  114  j  t  Yes.  186. 

H.  A.  De  Saussure  and  Pettigru,  contra,  cited  and  commented  on,  1 

^,Q-,-|  Bacon  Ab.  tit.     Uses  and  Trusts,  B.  1  Saunders  on  *Uses  and 

^"^^-1  Trusts,  246-7,253;  1  Mad.  256;  Com  Dig.  1010-11;  Whistler  i\ 

:N'ewmand,  4  Yes.  ;  2  Cox's  Cases,  1 ;  4  John.  Ch   Rep.  234 ;   11 

Yes.  319;  3  Yes.  jr.    696  ;   11  Yes.   319;  3  Bro.  C.   Rep.  90  ;  9  Yes. 
103  ;  1  Atk.  59  ;  3  lb.  323  ;  10  Yes.  511. 

Johnson,  J.  In  this  case,  as  in  most  others  of  the  same  character, 
various  minuiice  are  mixed  up  with  the  important  facts,  which  serve 
rather  to  embarrass  than  elucidate  :  divested  of  these,  this  cause  lies  in  a 
very  narrow  compass.  In  contemplation  of  a  marriage  between  the  com- 
plainant, Mrs.  Kinloch,  and  her  husband,  Frederick  Kinloch,  a  marriage 
contract  was  entered  into,  to  which  the  intended  husband  and  Thomas 
Lowndes,  the  father  of  Mrs.  Kinloch,  and  the  defendant,  Jacob  Bond 
I'On,  and  Cleland  Kinloch,  as  trustees,  were  parties.  By  this  contract, 
Thomas  Lowndes  covenants  to  advance  £3,000  to  Frederick  Kinloch, 
the  intended  husband,  to  be  invested  by  him  in  property  and  conveyed  to 
the  trustees,  for  the  uses  and  trusts  declared  in  the  contract  (for  Frederick 
Kinloch  and  wife,  for  life,  and  then  to  the  issue  of  the  marriage). 
Thomas  Lownes  paid  the  £3,000  to  Frederick  Kinloch,  and  he  invested 
a  part  thereof,  (according  to  the  statement  in  the  bill,  about  $11,100,  and, 
according  to  his  answer,  $7,265)  in  lauds,  and  procured  the  title  deeds  to 
be  executed  by  the  persons  of  whom  he  purchased,  directly  to  the 
trustees,  Jacob  Bond  I'On  and  Cleland  Kinloch.  These  deeds  do  not 
set  out  the  object,  or  declare  the  trusts,  but  are  general.  Frederick  Kin- 
loch afterwards  sold  these  lands,  and  procured  the  trustees  to  join  in  a 
deed  to  the  purchaser,  and  he  received  and  squandered  the  proceeds,  and 
is  now  insolvent ;  and  the  object  of  the  bill  is  to  compel  an  account  from 
the  trustees  of  this  fund,  and  that  they  may  reimburse  the  trust  estate,  the 
sum  laid  out  in  the  purchase  of  lands. 

One  ground  of  defence  common  to  all  the  defendants,  is,  that  the  trus- 
tees had  not  done  any  act,  making  themselves  liable,  because  the  property 
never  had  been  conveyed  to  them,  as  trustees  under  the  settlement.  An 
agreement  had  been  entered  into  between  Thomas  Lowndes,  Frederick 
*1921  •^^"^*^'^'^'  '^"^  ^^i^  *father,  Francis  Kinloch,  in  which,  among  other 
"'-'  things,  Thomas  Lowndes  undertakes,  in  consideration  that  Francis 
Kinloch  would  make  a  bond  to  Col.  I'On,  for  $15,000  as  trustee  to  the 
use  of  Frederick  Kinloch  and  wife,  to  indemnify  him  (Francis  Kinloch) 
against  his  guaranty  under  the  marriage  settlement ;  and  it  is  insisted, 
that  the  liability  of  the  trustees  to  account  is  discharged  by  this  contract. 
Jacob  Bond  I'On  lived  at  a  distance,  and  had  no  agency  in  the  invest- 
ment of  the  fund,  nor  did  he,  in  any  manner,  interest  himself  concerning 
the  trusts,  except  to  join  in  tlie  conveyance  of  the  land  in  pursuance  of 
the  sale  made  by  Frederick  Kinloch,  and  on  that  account  it  is  insisted  in 
his  behalf,  that  he  is  not  liable.  The  trust  reposed  in  Frederick  Kin- 
loch by  the  deed  of  settlement,  was  that  he  should  invest  his  wife's  portion 
in  property,  and  procure  the  same  to  be  vested  in  the  trustees,  to  the  use 


*192]  CHARLESTON,    APRIL,    1833.  13,^ 

of  the  settlement :  this  was  so  far  fulfilled,  that  the  lands  purchased  were 
vested  in  the  trustees,  but  the  conveyances  are  defective  in  not  setting  out 
and  declaring  the  uses.  Courts  of  Equity,  it  is  said,  have  from  a  very 
early  period,  taken  upon  them  the  power  to  supply  the  defective  execu- 
tion of  powers,  as  a  cherished  branch  of  equity  jurisdiction,  1  Mad. 
Ch.  58-4.  It  is  said,  too,  that  it  is  a  rule  in  equity  that  if  one  comes 
into  possession  of  trust  property  with  notice  of  the  trust,  he  shall  be  con- 
sidered as  a  trustee,  and  with  respect  to  that  property,  bound  to  the  exe- 
cution of  the  trust,  2  Mad.  Ch.  125. 

Now,  it  is  not  pretended  that  either  of  the  trustees  were  ignorant  of 
the  true  object  of  the  conveyances  to  them  ;  indeed  all  the  circumstances 
conspire  to  show  that  they  could  not  be,  and  the  legal  estate  was  in 
them.  The  Court  of  Equity  would  therefore  have  either  supplied  the 
execution  of  the  trust  confided  to  Frederick  Kinloch,  or  enforced  a 
declaration  of  the  uses  in  conformity  to  the  trusts.  By  the  conveyance 
to  the  purchaser  from  Frederick  Kinloch,  the  trustees  have  parted  with 
their  dominion  over  the  property,  and  by  suffering  Frederick  Kinloch  to 
dissipate  the  proceeds,  so  much  has  been  lost  to  the  trust  estate,  and  upon 
every  principle  of  equity,  they  are  responsible.  I  cannot  perceive  how 
the  contract  between  Thomas  Lowndes,  Francis  Kinloch  *and  r:jciqq 
Frederick  Kinloch,  can  in  any  way  influence  the  determination  of  L 
the  Court.  In  the  first  place,  it  is  not  apparent  that  it  had  for  its  object 
the  indemnity  of  the  trustees  against  this  liability  ;  but  supposing  it  had, 
that  would  not  discharge  them,  for  Thomas  Lowndes  had  no  authority  to 
release  them — he  was  not  himself  beneficially  interested  in  the  trust 
estates.  By  joining  in  a  conveyance  of  the  land,  Jacob  Bond  I'On  con- 
tributed to  put  the  fund  in  the  power  of  Frederick  Kinloch,  who  has 
wasted  it :  and  on  that  ground  he  is  liable.  His  not  having  otherwise 
intermeddled  with  the  estate,  so  far  from  being  a  merit,  is  a  violation  of 
the  trust ;  having  accepted  it,  he  incurred  the  responsibility  of  discharg- 
ing the  duties  which  it  imposed. 

Motion  dismissed. 
O'Neall  and  Harper,  Js.,  concurred. 


Morton  A.  Waring,  Executor  of  Thomas  Smith,  Jr.,  u  Anne  Pur- 
cell,  Executrix  of  Thomas  Smith,  Jr. 

The  testator,  by  his  will,  directed  his  debts  to  be  paid  out  of  the  debts  due  him,  and 
gsive  certain  specific  legacies,  and  then  devised  the  residue  of  his  estate  to  his 
sister  for  life,  remainder  over,  &c.,  and  died  in  September,  leaving  a  crop  on  his 
plantation  :  Held,  that  the  crop  growing  on  the  land,  and  which  was  severed 
before  the  last  of  December,  was  assets  in  the  hands  of  the  executor,  for  the  pay- 
ment of  the  debts  and  pecuniary  legacies.  [*196] 

Where  the  testator  bequeathed  an  annuity  to  be  paid  on  the  first  of  March  in  every 
year,  and  he  died  in  September  :  it  was  held,  that  the  legatee,  on  the  first  of 
March  after  the  testator's  death,  should  be  paid  a  proportion  of  the  annuity, 
equal  to  the  time  which  had  run  after  his  death. [*199] 

The  defendant,  an  executrix,  with  the  consent  and  approbation  of  the  plaintiff,  her 
co-executor,  delivered  a  bond  due  to  the  testator  to  a  legatee,  under  the  belief 
that  the  testator  so  intended  ;  afterwards  the  plaintiff  discovered  circumstances 
■which  induced  him  to  believe  that  they  had  mistaken  the  testator's  wishes,  and 
filed  a  bill  for  settlement  and  relief:  Held,  that  the  plaintiff,  having  given  his 
consent  to  the  delivery  of  the  bond,  was  concluded  by  it.[*202] 


134  SOUTH   CAROLINA   EQUITY    REPORTS.  [*193 

This  case  came  to  a  hearing:  before  Chancellor  De  Saussiire,  at 
Charleston,  April  Term,  1831.  The  following  extract  from  his  decree 
presents  the  facts  and  the  questions  arising  out  of  them  : 

"  The  late  Thomas  Smith,  Jr.,  made  and  duly  executed  his  last  will 
and  testament  on  the  11th  October,  1821,  and  departed  this  life  on  the 
day  of  September,  1830,  leaving  the  same  in  full  force  and  virtue. 

"  First. — By  that  will  the  testator  desired  that  his  sister,  Mrs.  Ann 
Purcell,  should  enjoy  the  profits  of  his  estate  as  free  from  incumbrance  as 
possible. 

"  Second. — He  directed  his  debts  to  be  paid  from  such  moneys  as 
j^-Q  .-i  *might  be  due  to  him  at  the  time  of  his  death,  in  preference  to  any 
-I   part  of  his  estate,  or  the  income  thereof. 

"  Third. — He  bequeathed  to  his  aunt,  Sarah  Hutchinson,  a  female 
slave,  a  riding  chair  and  horse,  and  five  hundred  dollars  annually,  to  be 
paid  out  of  the  income  of  the  estate  on  the  first  of  March  annually  during 
her  life. 

"  Fourth. — He  bequeathed  to  his  cousin,  Thomas  Smith  Waring,  two 
slaves  whom  he  names. 

"Fifth. — He  devised  and  bequeathed  all  the  rest  and  residue  of  his 
estate,  real  and  personal,  to  his  sister  Ann  Purcell,  for  and  during  her 
natural  life,  and  after  her  death  to  his  cousin  Morton  A.  Waring,  his 
heirs,  &c. — subject  to  the  payment  of  a  legacy  of  two  thousand  dollars 
to  his  cousin,  Horatio  Smith  Waring,  within  twelve  months  after  the  de- 
cease of  Mrs.  Ann  Purcell. 

"Sixth. — He  nominated  Ann  Purcell,  Morton  A.  Waring  and  Ho- 
ratio Smith  Waring,  to  be  executors  of  his  will.  The  two  former  proved 
the  will  and  qualified  thereon  as  executors. 

"  The  cause  was  argued,  and  several  questions  were  submitted  to  the 
consideration  of  the  Court. 

"  First. — As  to  the  crop  growing  on  the  estate  of  the  testator  at  the 
time  of  his  death,  in  1830. 

"  Second. — As  to  the  fund  for  the  payment  of  the  debts. 

"  Third. — As  to  the  payment  of  the  annuity  of  five  hundred  dollars,  to 
Mrs.  Ann  Hutchinson.  ****** 

"  On  the  first  question  there  is  some  difficulty.  The  general  law  under 
our  statute  of  1789,  (sec.  23,)  appears  to  be  clear,  that  the  crop  of  the 
year  in  w^hich  the  testator  or  intestate  dies,  shall  be  assets  subject  to 
debts,  legacies,  and  distribution.  And  I  think  it  is  applicable  to  all 
cases,  notwithstanding  the  ingenious  distinction  of  the  counsel,  founded 
on  the  wording  of  the  statute,  between  the  tenant  for  life  or  holding  abso- 
lutel}'^,  going  out  of  possession  or  coming  into  possession.  In  any  ques- 
tion between  creditors  and  legatees  or  distributees,  the  general  law  must 
prevail,  but  in  the  case  of  an  ample  estate,  where  the  question  arises  be- 
tween different  devisees  and  legatees,  the  general,  may  give  way  to  the 
particular,  provisions  of  the  will.  In  the  case  before  us,  the  testa- 
*1  QM  ^^^'*  i^^i^'f^sts  the  most  decided  desire  to  favor  his  sister.  It  is 
-J  the  first  clause  of  his  will,  that  she  should  enjoy  the  profits  of  his 
estate  as  free  from  incumbrance  as  possible,  and  after  some  particular  dis- 
positions, he  devises  the  whole  of  his  real  and  personal  estate  to  her 
during  her  life.  He  also  provides  a  special  fund  for  the  payment  of  his 
debts ;  for  he  directs  that  his  debts  should  be  paid  from  such  moneys  as 


*195] 


CHARLESTON,    APRIL,    1833.  135 


may  be  due  to  him  at  the  time  of  his  death,  in  preference  to  any  otlier 
part  of  his  estate  or  the  income  thereof.  The  crop  of  the  year  in  which 
he  died  was  the  principal  part  of  tlie  income  of  his  estate ;  and  by  the 
family  law  of  his  will,  it  is  not  to  be  applied  to  pay  the  debts — and  as 
between  his  legatees,  it  is  to  be  obeyed  whilst  other  funds  are  to  be 
found. 

"  The  second  question  is,  what  is  the  proper  fund  to  pay  the  debts. 
The  testator  says  they  are  to  be  paid  out  of  the  debts  due  to  him.  It 
appears  that  these  do  not  amount  to  more  than  $2000,  whilst  the  debts 
due  by  him  amount  to  $4000.  The  deficiency  must  l)e  supplied  in  some 
way  out  of  the  estate,  with  great  attention  to  the  testator's  desire  that 
the  income  should  not  be  diminished  to  the  prejudice  of  the  sister  of  the 
testator  ;  and  to  the  interest  of  the  remainder-man,  that  the  estate  itself 
may  not  be  broken  down  and  exhausted.  The  Court  is  not  sufficiently 
in  possession  of  the  facts  relative  to  the  situation  of  the  estate,  its  pro- 
ductive funds,  its  unproductive  stock,  &c.,  &c  It  is  therefore  ordered, 
that  it  be  referred  to  the  Master  in  Equity,  to  examine  and  report  the 
situation  of  the  estate;  its  productive  and  unproductive  funds,  and  the 
proper  part  of  the  estate  to  be  applied  to  aid  in  the  payment  of  the 
debts  of  the  testator. 

"  The  third  question  relates  to  the  payment  of  the  annuity  of  $500  to 
Mrs.  Ann  Hutchinson.  She  was  the  kinswoman  of  the  testator,  and  this 
provision  of  his  bounty  was  intended  for  her  subsistence.  It  appears  to 
me,  as  the  testator  has  himself  fixed  the  first  day  of  March  as  the  day  for 
the  annual  payment,  that  we  should  come  nearest  his  intention  by  direct- 
ing such  proportion  of  the  annuity  as  accrued  between  the  testator's  death 
in  1830,  and  the  first  of  March,  1831,  to  be  then  paid,  and  afterwards  each 
succeeding  annuity  to  be  paid  on  *each  succeeding  first  of  March —  r-^.  „„ 
and  it  is  so  ordered  and  decreed.  Another  question  is,  out  of  L 
what  fund  is  it  to  be  paid.  The  will  answers  that  question,  by  providing 
expressly  that  the  annuity  should  be  paid  out  of  the  income  of  the  estate, 
and  it  is  subsequent  to  this  direction,  that  the  residue  and  rest  of  the 
estate  is  bequeathed  to  the  testator's  sister  for  life." 

From  this  decree  the  plaintiff  appealed,  on  the  grounds  : 

1.  That  the  crop  on  the  land  at  the  testator's  death,  should  be  applied 
to  the  payment  of  the  debts. 

2.  That  Mrs.  Hutchinson's  annuity  ought  to  have  been  paid  in  full,  on 
the  first  of  March  after  the  testator's  death. 

7.  E.  Holmes,  for  the  appellant,  cited  Toller  Ex'rs.  149 ;  A.  A.  1789; 
P.  L.  494. 

Pettigru,  contra,  referred  to  Toller,  129,  202 ;  Gilb.  Ev.  • 6  E. 

604  ;  2  Black.  122. 

Johnson,  J.  The  testator,  Thomas  Smith,  is  represented  to  have 
died  in  September,  1830,  and  the  first  ground  of  this  motion  arises  out 
of  the  following  clause  of  his  will,  which  is  preceded  by  divers  specific 
bequests,  to  wit : — "  I  also  give,  devise  and  bequeath  all  the  rest,  residue 
and  remainder  of  my  estate,  real  and  personal,  of  what  nature  and  kind 
soever  the  same  may  be,  to  my  sister  Ann  Purcell,  for  and  during  the 
terra  of  her  natural  life  ;   and  from  and  immediately  after  her  death, 


136  SOUTH    CAROLINA    EQUITY    REPORTS.  [*196 

over,"  &c.  At  the  time  of  his  death,  the  testator  owned  and  possessed 
a  plantation  and  negroes,  which  passed  under  this  clause  of  the  will, 
but  being  indebted,  the  question  is,  whether  the  crop  growing  on  the 
plantation  at  the  death  of  the  testator,  is  assets  in  the  hands  of  the 
executor,  or  passed  to  the  defendant  under  the  devise. 

It  is  enacted  by  the  Act  of  1189,  Pub.  Laws,  494,  that  "  if  any  person 
shall  die  after  the  first  day  of  March  in  any  year,  the  slaves  of  which  he 
or  she  was  possessed,  whether  held  for  life  or  absolutely,  and  who  were 
employed  in  making  a  crop,  shall  be  continued  on  the  lands  which  were 
5j..„^-,  in  the  occupation  of  the  deceased,  until  the  crop  is  *finished,  and 
-^  then  be  delivered  to  those  who  have  the  right  in  them  ;  and  such 
crop  shall  be  assets  in  the  executor  or  administrator's  hands,  for  the  pay- 
ment of  debts,  legacies  and  distribution,"  the  current  expenses  being  paid 
out  of  it.  The  same  clause  of  the  act  further  provides,  that  "emblements 
growing  on  the  land,  and  which  shall  be  severed  before  the  last  day  of 
December,  shall  likewise  be  assets  in  the  hands  of  the  executor  or  admin- 
istrator ;  but  that  such  as  may  be  growing  on  the  land  at  that  day,  or  at 
the  death  of  the  testator,  if  that  happen  between  the  said  last  day  of 
December,  and  the  first  day  of  March,  shall  pass  with  the  lands;"  and  if 
any  person. shall  rent  or  hire  lands  or  slaves  of  a  tenant  for  life,  and  such 
tenant  for  life  dies,  the  person  having  such  land  and  slaves,  shall  not  be 
dispossessed,  until  the  crop  of  that  year  is  finished,  he  or  she  securing  the 
payment  of  the  rent  or  hire  when  due. 

According  to  the  common  law,  the  annual  productions  of  the  soil 
growing  at  the  death  of  the  testator,  went  to  the  executor  and  not  to 
the  heir ;  and  thus  far  our  Act  is  in  affirmance  of  the  common  law ;  but 
this  rule  did  not  sufficiently  provide  for  the  state  of  things  existing  here. 
In  England,  the  executor  had  the  same  means  of  providing  for  the  culti- 
vation of  the  crop  that  the  testator  had,  by  hired  laborers,  over  whom 
the  testator  had  not  the  power  of  disposition.  Here  it  is,  for  the  most 
part,  done  by  means  of  slaves  belonging  to  the  testator,  which  he  may 
dispose  of  by  will,  and  in  case  of  intestacy,  are  distributable  in  the  same 
manner  as  lands  or  chattels.  If  they  were  removed  from  the  land  after 
the  crop  was  planted,  and  before  it  was  finished,  it  would,  in  general,  and 
especially  on  large  plantations,  be  impossible  to  supply  their  places,  and 
the  crop  would  be  lost.  In  cases  of  intestacy,  without  this  Act  there 
could  be  nothing  to  restrain  the  administrator  from  making  imme- 
diate distribution  of  the  personal  estate  to  the  destruction  of  the  crop, 
and  thus  a  fund  might  be  lost  to  the  distributees  or  creditors.  The 
object  of  the  legislature  obviously  was  to  guard  against  these  coase- 
quences,  by  making  it  the  duty  of  the  executor  or  administrator  to 
retain  the  slaves  and  lands  until  the  crop  was  finished  ;  the  estate 
*10ST  *"^  ^''^  '^"'^  ^^^  negroes  vests,  as  at  common  law,  in  the  devisee 
-'  or  distributee,  and  the  possession  only  is  postponed  by  this  Act. 
Regarding  the  provisions  of  this  Act  as  merely  arbitrary,  it  operates  in 
cases  of  intestacy  with  perfect  equality  and  for  the  benefit  of  all  con- 
cerned ;  by  this  means  the  growing  crop  is  preserved,  and  is  so  much 
added  to  the  general  fund.  The  supposed  injustice  of  applying  it  to  a 
case  of  testacy  disappears,  when  it  is  recollected  that  the  testator  may 
order  it  otherwise  if  he  will.  His  power  of  disposition  is  unlimited,  and 
the  Act  can  only  operate  when  he  is  silent,  and  doubtless  many  incon- 


*198]  CHARLESTON,    APRIL,    1833.  137 

veniences  are  remedied  by  it.     The  rule  which  it  prescribes  appears  to 
me  to  be  wise  and  salutary. 

If  the  land  had  been  devised  to  one,  the  slaves  to  another,  and  the 
beasts  of  the  plough  to  a  third,  there  could  have  been  no  doubt  that  the 
rule  prescribed  by  the  act  should  prevail ;  and  I  cannot  perceive  how 
the  circumstance  that  the  whole  is  devised  to  one,  can  vary  it — the  Act 
contains  no  such  exception.  The  inference,  that  by  the  devise  of  the 
whole  to  one,  the  testator  intended  that  she  should  also  take  the  crop, 
would  equally  apply  when  it  was  to  several ;  there  would  be  the  same 
facility  in  making  distribution  of  the  crop,  as  of  the  corpus  of  the  estate. 
It  will  be  perceived  by  reference  to  the  last  member  of  the  clause  of  the 
Act  above  recited,  that  when  lands  or  slaves  are  hired  from  a  tenant  for 
life,  he  shall  retain  them  until  the  crop  of  that  year  is  finished,  "  but 
shall  secure  the  payment  of  the  rent  or  hire,  when  due ;"  and  it  has  been 
contended,  that  under  this  provision,  the  executor  or  administrator  shall 
pay  rent  and  hire  for  lands  and  slaves  retained  by  him  under  the  first 
member  of  this  section.  But  that  is  utterly  inconsistent  with  the  crop's 
being  assets  in  his  hands,  for  the  payment  of  debts  or  legacies.  Besides 
that,  it  is  most  obvious  that  it  was  intended  to  provide  for  an  entirely 
different  case,  the  case  of  lands  or  slaves  hired  from  a  tenant  "for  life — 
whilst  the  other  was  intended  to  provide  generally  for  the  case  of  one 
dying  possessed  of  lands  and  slaves  in  his  own  right,  for  both  of  which  a 
perfect  and  entire  system  is  provided,  without  the  aid  of  the  other. 

*In  a  preceding  clause  of  this  will,  the  testator  directs  that  his  [-,(-iqq 
debts  shall  be  paid  out  of  "such  moneys  as  may  be  due  to  me  at  L 
the  time  of  my  death,  in  preference  to  any  part  of  my  estate  or  the  income 
thereof;"  and  reliance,  I  observe,  is  placed  on  this,  in  aid  of  the  intention 
of  the  testator,  that  Ann  Purcell  should  take  the  growing  crop,  there 
being  a  fund  set  apart  for  the  payment  of  debts.  If  I  am  right  in  sup- 
posing that  the  crop  did  not  pass  under  the  devise  of  the  lands  and 
negroes,  it  is  wholly  immaterial  whether  the  fund  set  apart  for  the  pay- 
ment of  debts  was  sufficient  or  not.  If  it  was  not,  then  the  proceeds  of 
the  crop  would  go  in  aid  of  it ;  if  it  was,  then  it  would  be  applicable  to 
the  payment  of  pecuniary  legacies,  and  the  remainder,  if  any,  would 
sink  into  the  residuum. 

On  the  second  ground,  we  concur  with  the  Chancellor.  The  bequest 
to  Sarah  Hutchinson  is  of  "five  hundred  dollars'  annuity  to  be  paid  her 
out  of  the  income  of  my  estate,  on  the  first  day  of  March  in  every  year." 
The  bequest  could  not  take  effect  until  the  death  of  the  testator  He 
died*  in  September,  and  the  whole  annuity  would  not  be  due  until  the 
September  of  the  following  year.  But  it  was  to  be  paid  on  the  first  of 
March  in  every  year ;  and  we  think  it  comports  best  with  the  intention 
of  the  testator,  that  she  should  be  paid  on  the  first  day  of  March  next 
after  his  death,  a  proportion  of  the  annuity  equal  to  the  time  which  had 
run  after  his  death. 

It  is,  therefore,  ordered  and  decreed,  that  the  decree  of  the  Circuit 
Court  be  reformed  according  to  the  principles  of  this  decree. 

O'Neall  and  Harper,  Js.,  concurred. 

After  the  first  decree,  this  case  was  again  heard  at  Charleston  in 
January,  1832,  on  exceptions  to  the  report  of  the  Commissioner,  on  the 


138  SOUTH    CAROLINA   EQUITY   REPORTS.  [*199 

reference  previously  ordered.     The  following  decree  presents  the  only- 
question  then  raised,  and  the  facts  connected  with  it. 

^c)ar.-\  *De  Saussure,  Chancellor.  A  decree  was  formerly  delivered 
^  -^  in  this  case  on  some  of  the  points  in  it.  It  was  referred  to  the  Com- 
missioner to  report  on  certain  facts,  out  of  which  certain  questions  might 
arise.  The  Commissioner  has  made  a  report  on  which  the  questions  antici- 
pated have  been  argued.  It  appears  briefly  that  the  testator,  the  late  Mr. 
Thomas  Smith,  by  his  last  will  and  testament  duly  executed,  bequeathed 
$2000  to  Mr.  Horace  Waring,  and  some  other  legacies  to  others.  The 
rest  and  residue  of  his  estate  was  bequeathed  to  his  sister,  Mrs.  Purcell, 
during  her  life,  with  a  remainder  to  Col.  Morton  Waring  and  family. 
Some  very  short  time  before  his  death,,  the  testator  stated  to  his  sister 
(as  she  testifies)  that  he  had  thought  he  had  given  a  legacy  of  $5000  to 
Dr.  Horace  Waring,  but  on  recurring  to  his  will  he  found  he  had  be- 
queathed only  $2000 ;  that  he  wanted  to  alter  his  will  and  give  him 
$5000.  He  died  suddenly  within  a  few  weeks  of  that  conversation.  In 
his  coat  pocket  was  found  a  bond  on  Mr.  W  S.  Smith,  which  it  was 
believed  he  intended  to  deliver  in  part  of  such  additional  legacy.  Mrs. 
Purcell,  under  such  an  impression,  communicated  her  ideas  to  Col.  Morton 
A.  Waring,  and  proposed  to  him  to  deliver  the  bond  to  Dr.  Horace 
Waring.  To  this  Col.  Waring  did  not  object,  and  said  he  would  not 
thwart  any  of  the  washes  of  his  testator.  The  bond  was  delivered  with 
his  knowlege  and  approbation  to  Dr.  Waring.  Col.  Morton  Waring 
was  also  sworn,  who  testified  that  the  testator,  Mr.  Thomas  Smith,  had 
conversed  with  him  about  a  legacy  to  Dr.  Horace  Waring,  to  the  amount 
of  $4000,  but  that  in  looking  into  the  will  he  found  he  had  given  him  but 
$2000,  that  it  was  his  desire  to  double  it,  but  was  unwilling  to  alter  his 
will.  He  stated  that  he  had  reason  to  believe  that  Horace  was  in  a 
pecuniary  difficulty,  and  the  testator  wished  the  additional  provision  to 
be  immediately  available  and  proposed  a  plan  for  that  purpose  ;  the  plan 
was  carried  into  effect,  and  the  witness,  Col.  Waring,  afterwards  heard 
that  stock  was  transferred  to  Dr.  Horace  Waring,  to  about  the  amount 
of  $2000.  Col.  Waring  states  that  he  never,  before  the  death  of  Mr. 
Smith,  had  any  intimation,  from  any  quarter,  that  Mr.  Smith  intended 
*2011  ^^'  ^^™o*  ^  bounty  or  benefit  of  $5000.  From  the  report  and 
-I  the  evidence  it  is  obvious  that  neither  of  these  executors  desire  to 
defeat  or  thw^art  the  expressed  wishes  of  their  testator  and  benefactor — 
they  would  not  dishonor  themselves  by  doing  so,  after  his  kindness  to 
them.  It  is  not  necessary  to  go  into  the  question,  how  far  the  claitn  of 
Dr.  Horace  Waring  to  this  enlargement  of  his  legacy,  could  be  sustained 
under  the  declaration  of  the  testator.  Some  very  strong  cases  exist  on 
the  subject,  but  they  need  not  be  referred  to.  Dr.  Horace  Waring  is  not 
a  party  to  these  pleadings — the  bond  of  Mr.  W.  S.  Smith  has  been 
delivered  to  him  by  one  executor,  with  the  approbation  of  the  other,  and 
that  cannot  now  be  distributed.  The  bill  is  filed  by  Col.  Waring,  as 
executor,  against  Mrs.  Purcell,  as  executrix,  to  have  a  settlement  of  the 
estate,  as  between  themselves  and  those  they  represent.  Col.  Waring 
insists  that  the  testator  meant  to  give  Dr.  Horace  Waring  only  $4000, 
and  that  the  legacy  of  $2000  actually  bequeathed  under  the  will,  with 
nearly  $2000  paid  from  a  bond  sold  for  the  purpose  of  enlarging  that 


*201]  CHARLESTON,    APRIL,    1833.  139' 

legacy,  made  up  the  amount  intended  for  Dr.  Horace  Waring ;  and  that 
the  bond  of  Wm.  S.  Smith  ought  to  have  been  retained  as  assets  of  the 
estate,  applicable  to  pay  the  debts,  and  for  distribution  among  the 
legatees. 

To  this  there  seems  to  be  two  objections.  First,  at  all  events  Col. 
Waring  had  been  present  and  assenting  to  the  delivery  of  the  bond  of 
Wm.  S.  Smith  to  Dr.  Horace  Waring  (who  had  refused  to  receive  it 
without  his  assent).  It  is  not  for  him  to  insist  that  his  co-executor 
should  bring  into  her  account  of  the  estate,  a  bond  transferred  with  his 
approbation,  especially  as  there  are  no  creditors  to  be  affected.  Secondly, 
that  it  is  sufficiently  proved  that  Mr.  Thomas  Smith  did  intend  to  en- 
large the  legacy  of  $2000  (by  gift  or  otherwise)  to  Dr.  Waring,  to  the 
amount  of  $5000  The  two  respectable  witnesses,  each  entitled  to  per- 
fect credit  from  high  character,  do  certainly  differ  in  their  statement  of 
the  amount  intended  for  Horace  Waring.  The  one  states  $4000,  and 
the  other  $5000,  as  the  sum  intended  by  Mr.  Smith.  Each  statement 
is  affirmative,  and  each  entitled  to  *credit.  The  testator  must  have  r*202 
stated  the  one  sum  to  the  one,  and  the  other  sum  to  the  other,  and  L  -^  -■ 
he  seems  to  have  acted  on  the  largest  sum,  for  he  caused  to  be  delivered 
to  Dr.  Waring  the  proceeds  of  a  bond  which  he  sold,  which,  with  the  actual 
legacy,  amounted  to  nearly  $4000,  and  then  was  preparing,  as  Mrs.  Pur- 
cell  believes,  to  deliver  up  the  bond  of  Wm.  S.  Smith  to  Dr.  Waring, 
when  he  was  surprised  and  prevented  by  death.  It  appears  to  me  there 
should  be  no  feud  in  this  case  ;  both  parties  are  beneficiaries  of  Mr. 
Thomas  Smith,  both  would  abhor  and  repel  the  imputation  of  desiring 
to  defeat  his  wishes — they  have  expressed  that  good  feeling  which  must 
be  acted  on  to  its  full  extent. 

It  is  therefore  decreed,  that  the  bond  of  Wm.  S.  Smith  was  property 
delivered  by  Mrs.  Purcell,  to  Dr.  H.  Waring,  with  the  approbation  of 
Col.  M.  Waring,  and  that  no  account  should  be  taken  thereof  in  the  set- 
tlement of  the  estate.     Costs  to  be  paid  out  of  the  estate. 

From  this  decree  the  plaintiff  appealed,  on  the  ground  that  his  Honor 
the  Chancellor  erred,  in  decreeing  that  the  delivery  of  the  bond  to  Horace 
Waring,  under  the  circumstances  as  stated  in  the  decree,  was  proper. 

Holmes,  for  the  appellant,  cited  2  Eq.  Rep.  219. 

Johnson,  J,  The  evidence  on  both  sides  establishes  that  the  bond  of 
W.  S.  Smith  was  delivered  to  Dr.  Waring  by  the  defendant,  with  the 
consent  and  approbation  of  the  plaintiff,  in  the  belief  that  they  were  doing 
what  the  testator  intended  to  do,  and  would,  in  all  probability,  have 
done,  if  he  had  not  died  suddenly.  The  plaintiff  has  since  discovered  cir- 
cumstances which  induce  him  to  believe  that  they  had  mistaken  the  wishes 
of  the  testator,  and  that  he  had  done,  in  his  lifetime,  what  they  supposed 
he  would  have  had  done  after  his  death.  Suppose  this  to  be  true,  that 
gives  him  no  cause  of  complaint  against  the  defendant.  The  act  done 
was  his  own  act,  for  he  consented  to  and  approved  it ;  and  as  to  her,  he 
is  concluded  by  the  maxim,  volunti  non  Jit  injuria. 

If  there  be  any  liability,  it  must  then  devolve  on  Dr.  Waring  ;  and  it 
is  not  readily  perceived  how  he  can  be  *reponsib]e.  He  had  no  r*203 
legal  right  to  the  bond,  and  the  delivery  to  him  was  a  voluntary 


140  SOUTH   CAROLINA    EQUITY   REPORTS.  [*203 

gift  from  these  parties,  who  as  executor  and  executrix  and  legatees,  had 
a  right  to  give  ;  and  if  a  mistake  should  be  alleged  as  a  ground  for  set- 
ting it  aside,  there  would  be  some  difficulty  in  making  proof  of  a  mistake, 
in  a  voluntary  gift.  Besides,  the  defendant  still  maintains  that  there 
was  no  mistake,  and  that  they  did  precisely  what  the  testator  intended 
to  do  ;  so  that,  in  point  of  proof,  the  odds  is  against  the  complainant. 

The  motion  must  therefore  he  dismissed, 
O'Neall  and  Earle,  Js.,  concurred. 


P.  W.  Frazier  and  Wife,  v.  Percival  E.  Yaxjx,  Executor  of  John 

Pawley. 

The  10£  rule  for  the  hire  of  negroes,  does  not  apply  to  a  case  where  there  has  been 
an  account  kept  of  the  proceeds  of  their  labor  [*206] 

An  executor,  in  the  management  of  a  planting  interest,  applied  the  avails  of  the 
crops  to  the  purchase  of  negroes  for  the  estate,  and  worked  them  for  several  years 
on  the  plantation,  and  kept  regular  accounts  of  the  proceeds  of  each  crop  ;  the 
investment  being  unauthorized,  the  legatee  refused  to  receive  the  negroes  ;  on  a 
bill  filed  against  the  executor  for  an  account,  he  was  put  on  the  footing  of  a  part 
owner  and  held  entitled  to  a  proportionate  share  of  the  crops,  after  making 
allowance  for  the  rent  of  the  land.[*2U(J] 

The  Commissioner,  in  making  up  accounts,  must  conform  to  the  directions  of  the 
Court ;  and  if  from  any  cause,  he  cannot,  he  should  apply  to  the  Court  for  fresh 
instructions.  [*208] 

An  executor  is  not  entitled  to  commissions  for  the  years  in  which  he  has  failed  to 
make  returns;  and  such  default  deprives  him  also  of  the  right  to  recover  com- 
pensation for  extra  services. [*210] 

John  Pawley,  of  Georgetown,  by  his  will,  dated  17th  August,  1810, 
devised  all  his  estate  to  his  infant  daughter  Mary,  and  now  Mrs  Frazier, 
the  plaintiff,  and  appointed  the  defendant,  Percival  E.  Yaux,  his  exe- 
cutor Mr.  Vaux,  from  time  to  time,  laid  out  the  surplus  income  of  the 
estate  in  negroes,  for  the  use  of  his  ward,  and  in  the  year  1822,  bought 
of  J.  P.  LaBrace,  for  her,  twenty-five  negroes  on  credit,  at  $500  per 
head.  These  negroes  were  placed  on  the  young  lady's  planatation,  and 
very  good  crops  were  made  for  the  estate,  by  their  labor,  as  well  as  the 
others.  On  the  marriage  of  Miss  Pawley,  a  considerable  sum  was  still 
due  on  this  purchase,  which  Mr.  Frazier  refused  to  pay,  and  the  negroes 
were  taken  under  the  mortgage,  and  sold.  Mr.  Frazier  became  the 
purchaser,  and  the  proceeds  of  the  sale  merely  satisfied  the  residue  of  the 
debt  The  bill  filed  against  Mr.  Vaux,  for  an  account,  charged  this  pur- 
chase as  unauthorized,  and  that  the  defendant  was  accountable  for 
*  041  *^^^®  sums  he  had  paid  out  of  the  estate  for  that  purpose.  The  de- 
-^  fendant  filed  with  his  answer,  a  full  account  of  his  administration. 

In  April,  1828,  the  case  was  heard  before  Chancellor  De  Saussure, 
who  held  that  the  purchase  was  authorized,  and  ordered  an  account,  in 
taking  which  he  directed  a  liberal  allowance  to  be  made  to  the  de- 
fendant for  the  negroes,  and  that  he  should  be  charged  with  the  moneys 
he  had  paid  on  the  purchase.     The  defendant  appealed,  and  the  Court 


*204] 


CHARLESTON,    APRIL,    1833.  141 


of  Appeals  directed  the  account  to  be  taken  both  ways,  to  enable  them 
to  judge  whether  the  purchase  had  been  beneficial  to  the  estate. 

By  this  report  (January  1832),  the  Comruissioner  charged  the  defend- 
ant with  $8,102,  paid  towards  the  purchase,  and  allowed  him  for  the 
labor  of  twelve  and  a  half  full  hands,  at  the  rate  of  £10  per  hand  per 
annum.  To  this  report  the  defendant  excepted,  among  other  things, 
"because  Mr.  Heriot  [the  Commissioner]  has  allowed  for  the  use  of  the 
negroes  that  the  defendant  bought  of  J.  P.  LaBrace,  only  $44  per  annum ; 
whereas  it  is  submitted,  that  upon  principles  of  justice,  as  well  as  on  the 
terms  of  the  decree,  the  Commissioner  should  have  allowed  the  defendant 
a  portion  of  the  crops,  according  to  the  number  of  these  negroes  ;  and 
that  the  sum  of  $44,  for  hire,  is  inadequate."  Tliis  exception  was  sus- 
tained by  his  Honor  Chancellor  De  Saussure,  who  held  that  "  the  de- 
fendant is  entitled  to  credit  for  whatever  was  made  by  the  slaves,  deduct- 
ing therefrom  a  very  moderate  sum  for  land  rent." 

From  this  decree  the  plaintiff  appealed  ;  and  in  April  1832,  the  cause 
came  again  before  the  Court  of  Appeals.  The  Court,  after  disposing  of 
the  questions  raised  by  the  appellant,  directed  the  account  to  be  taken  in 
the  following  manner  : 

"  The  defendant  cannot  be  regarded  as  hiring  the  negi'oes  to  his 
cestui  que  trust — he  supposed  they  were  her  property,  and  charged  him- 
self with  the  whole  income  derived  from  the  slaves,  and  the  rest  of  the 
estate.  It  has  turned  out  that  she  and  her  husband  have  refused  the 
slaves,  and  they  must,  for  the  purpose  of  this  question,  be  regarded*  t^.^ak 
as  the  propery  of  the  executor,  employed  with  the  property  of  the  ■- 
cestui  que  trust  in  producing  the  annual  income.  How  much  of  it 
arose  from  the  trust  estate,  and  how  much  from  the  property  of  the 
executor,  are  the  only  questions  for  decision.  The  Commissioner  will 
have  little  difficulty  in  deciding  these  questions.  Any  planter  acquainted 
with  the  subject  can  easily  say  what  pro[)ortion  of  the  annual  net  profits 
of  the  years  1822,  '3,  '4,  '5  and  '6,  ought  to  be  allowed  to  the  defendant, 
for  the  services  of  the  twenty-five  slaves,  by  him  eini)loyed  with  the  slaves 
of  his  cestui  que  trust  in  making  the  crops  of  those  years  :  It  is  therefore, 
ordered  and  decreed,  that  the  cause  be  remanded  to  the  Circuit  Court, 
with  instructions  to  the  Commissioner  to  make  up  the  account  between 
the  parties,  according  to  the  views  contained  in  this  opinion." 

Mr.  Yaux  was  summoned  to  a  reference,  in  January,  1833,  which  he 
did  not  attend  ;  and  Mr.  Cohen  was  present,  but  having  been  recently 
engaged,  and  being  without  any  instructions,  took  no  part.  Mr.  Heriot, 
the  Commissioner,  by  his  report,  disallows  the  defendant's  commissions 
amounting  to  $2,500,  on  the  ground  that  he  had  not  passed  his  accounts 
till  after  the  bill  was  filed;  and  allowed  him  only  $50  per  head  annuall}^ 
for  ten  negroes — and  annexed  two  scliedules,  one  allowing,  and  the  other 
disallowing,  the  suras  paid  by  the  defendant  towards  the  purchase  of  the 
negroes.  The  defendant  objected  to  the  report,  because  the  account  had 
not  been  taken  according  to  the  directions  given  by  the  decree.  But  the 
Chancellor  overruled  the  objection,  considering  the  allowance  to  Mr. 
Yaux,  of  a  portion  of  the  crops,  an  indulgence  which  he  had  forfeited  ;  and 
confirmed  the  report,  but  without  making  any  further  decree. 

From  this  order,  confirming  the  report,  the  defendant  appealed,  and 
moves  to  reverse  it  on  the  following  grounds. 


*206] 


142  SOUTH    CAROLINA    EQUITY   REPORTS.  [*205 

1.  The  Commissioner  has  not  followed  the  directions  given  by  the 
Court,  whereby  he  is  ordered  to  take  the  account  between  Mr.  Yaux  and 
his  cestui  que  trust,  as  between  part  owners ;  nor  is  there  any  difficulty 
in  following  those  directions,  as  the  account  filed  show  what  the  crops 
were — and  twelve  and  a-half  hands  were  before  allowed  as  the  quota 

*of  the  defendant,  in  the  crops  of  1822,  '3,  '4,  '5  and  '6  ;  and  the 
number  of  the  other  hands  would  have  been  shown  by  complai- 
nants, into  whose  possession  they  all  passed,  and  where  they  now  are. 

2.  That  the  reduction  in  his  last  report  of  Mr.  Vaux's  hands,  from 
twelve  and  a-half  to  ten,  is  arbitrary  and  without  evidence. 

3.  That  the  defendant,  being  by  the  will  a  trustee,  is  entitled  to  com- 
missions ;  but  if  not,  he  should  be  allowed  the  benefit  of  an  action  at  law, 
to  recover  a  compensation  for  his  services,  which,  according  to  all  the 
evidence,  were  faithfully  and  diligently  rendered,  and  by  which  the  estate 
was  greatly  improved  during  the  long  minority  of  the  devisee. 

Fettigru  and  Cohen,  for  the  appellant. 

Hunt,  contra. 

O'Neall,  J.  The  opinion  of  the  Court  at  the  last  Term  fixed  the  rule 
by  which  the  Commissioner  should  have  made  up  his  report.  The  case 
was  then  regarded  as  one  in  which  hire  for  the  slaves,  as  ascertained  by 
the  £10  rule,  or  by  an  estimate  of  what  their  hire  was  worth,  would  not 
be  a  proper  allowance  to  the  defendant.  He  was  put  on  the  footing  of  a 
part  owner  with  his  cestui  que  trust,  and  held  to  be  entitled  to  a  propor- 
tionate share  of  the  crops.  The  opinion  then  expressed,  was  not  a  hasty 
one — it  was  formed  with  great  care,  a  proper  sense  of  what  was  due  to 
the  parties,  conformably  to  the  established  rules  of  the  Court.  The  £10 
rule  never  was  applied  to  a  case  in  which  accounts  of  the  proceeds  of  the 
labor  of  the  slaves  were  kept ;  nor  can  it  be  applied  to  cases  where  there 
is  proof  showing  that  they  have  been  employed  but  a  few  years,  in  which 
the  crops  were  unifoi'mly  good,  and  the  prices  not  subject  to  material 
diminution.  If,  in  neither  of  these  cases,  the  £10  rule  could  have  an  ap- 
plication, it  follows  that  the  opinion  of  witnesses,  of  the  price  for  which 
similar  negroes  could  have  been  hired,  constitutes  no  guide  to  ascertain 
the  value  of  their  labor. 

The  true  question,  is,  how  much  did  their  services  yield  ?  This,  in  the 
*9n'7l  case  before  us,  is  susceptible  of  an  easy  answer.*  Ascertain  the 
^  whole  number  of  negroes  employed  on  the  plantation,  during  the 
years  1822,  '3,  '4,  '5  and  '6,  and  the  amount  of  the  crops,  and  state  a 
proportion — as  the  whole  number  of  the  negroes  employed  is  to  the 
amount  of  the  crops,  so  will  the  twenty-five  belonging  to  Mr.  Yaux,  be 
to  the  share  of  the  crops  made  by  them.  From  this,  must  be  deducted, 
in  the  same  proportion,  their  share  of  the  rent,  and  the  balance  will  be 
the  gross  allowance  to  be  made  to  the  defendant.  This,  divided  into  five 
parts,  will  constitute  the  annual  allowance  to  be  made  to  him,  in  each  of 
these  years,  for  the  services  of  the  slaves. 

It  is,  however,  objected,  that  Mr.  Yaux  forfeited  all  benefit  of  this 
allowance,  by  not  attending  the  commissioner  on  the  reference.  To  say 
nothing  of  the  short  notice  of  the  reference,  and  the  hasty  manner  in 
which  the  Commissioner  thought  proper  to  conduct  and  close  it,  it  will  be 


*207]  CHARLESTON,  APRIL,  1833.  143 

enough  for  our  present  purpose  to  say,  that  the  defendant's  default  did 
not  authorize  the  Commissioner  to  reverse  the  opinion  of  the  Court  of 
Appeals,  and  set  up  a  rule  of  accounting  of  his  own,  not  authorized  by 
any  thing  in  the  cause.  It  was  his  duty,  if  he  went  on  ex  jyarfe,  to  have 
made  up  the  accounts  on  evidence  furnished  by  the  complainants  ;  but  in 
doing  so,  the  rule  fixed  by  the  Court  should  have  been  his  guide. 

It  is  said,  it  was  impossible  to  allow  Mr.  Vaux  a  proportion  of  the 
crops,  unless  he  attended  and  furnished  the  evidence  of  the  number  of 
slaves  belonging  to  the  estate.  To  me  it  appears  that  the  complainants 
could  easily,  had  it  been  necessary,  furnished  that  evidence.  They  are 
the  present  owners  and  have  them  in  possession,  and  if  they  had  shown 
how  many  they  received  on  their  marriage,  exclusive  of  the  twenty-five, 
the  Commissioner  might  have  taken  that  as  the  number,  during  the  pre- 
vious years,  and  made  up  his  accounts  accordingly.  But  there  was  no 
necessity  to  have  gone  beyond  the  papers  in  the  cause.  It  is  stated,  in 
the  defendant's  answer,  that  the  negroes  of  the  estate  amounted  to  seven- 
ty-three, when  he  turned  them  over  to  the  complainants.  This  was  either 
inclusive  or  exclusive  of  the  negroes  now  in  dispute,  and  without  proof, 
the  Commissioner  might  very  well  have  concluded  that  it  was  exclusive, 
and  this  *would  have  made  the  whole  number  of  the  negroes  era-  ^^.9(^Q 
ployed,  ninety-eight ;  and  thus,  one  part  of  his  proportion  was  L 
ascertained.  The  amount  of  crops  for  '22,  '3,  '4  and  '5,  he  has  ascer- 
tained and  reported  from  the  defendant's  accounts  ;  the  crop  of  '26  was 
partially  made  when  the  complainants  married,  and  the  complainant, 
Frazier,  received  it;  the  amount  of  it  he  could  and  ought  to  have  fur- 
nished, and  thus  the  second  part  of  the  proportion  could  be  obtained, 
and  then  nothing  remained  but  to  set  down  the  twenty-five  negroes 
belonging  to  the  defendant,  and  the  proportion  was  completed  ;  and  any 
one  acquainted  with  the  rule  of  three  could  have  produced  an  answer 
showing  the  gross  allowance  in  favor  of  the  defendant,  from  which  would 
be  deducted  his  proportion  of  the  rent ;  and  the  nett  result  would  be  the 
whole  allowance  to  the  defendant  for  the  labor  of  his  slaves. 

But  whether  the  problem  was  of  hard  or  easy  solution,  it  was  the  busi- 
ness of  the  Commissioner  to  pursue  the  directions  of  the  Court,  and  not 
undertake  to  adopt  his  own  notions  of  what  was  right  and  proper.  If 
he  could  not  get  on  without  Vaux's  presence,  and  he  had  refused  to 
attend,  he  ought  to  have  applied  to  the  Court  for  fresh  instructions,  or  he 
might  have  been  authorized  by  the  Court  to  attach  the  defendant  until  he 
did  attend.  The  rule  is  a  familiar  one,  that  the  Commissioner  must  con- 
form to  the  instructions  given  to  him  by  the  Court. 

In  Remsen  v.  Remsen,  2  J.  C.  R.  501,  Chancellor  Kent  says — "  Or- 
ders of  reference  should  specify  the  principles  on  which  the  accounts  are 
to  be  taken,  or  the  inquiry  proceed,  as  far  as  the  Court  shall  have  decided 
thereon,  and  the  examination  before  the  Master  should  be  limitetl  to  such 
matters  within  the  limits  of  the  order,  as  the  principles  of  the  decree  or 
order  may  render  necessary."  The  Commissioner,  according  to  these 
observations,  ought  to  have  confined  his  examination  to  such  matters  as 
were  within  the  limits  of  the  order.  He  was  directed  to  inquire  what 
sum  out  of  the  crops  the  defendant  should  receive  as  a  part  owner  entitled 
to  a  share ;  and  instead  of  making  an  attempt  to  ascertain  it,  he  recom- 
mends the  allowance  of  hire,  which  the  Court  had  before  repudiated,  and 


144  SOUTH  CAROLINA   EQUITY   REPORTS.  [*208 

*onqi  '"  ^^^  place  had  directed  the  account  as  between*  part  owners.  To 
■^  allow  such  a  report  to  stand,  is  to  make  the  Commissioner  the  ap- 
pellate jurisdiction,  instead  of  the  Court. 

In  Lupton  v.  White,  15  Yes.  432,  the  Master  reported  that  he  could 
not  make  up  the  accounts,  on  account  of  the  uncertainty  of  the  evidence. 
It  was  contended  in  that  case,  as  in  this,  that  the  Master  ought  to  have 
charged  the  defendants  with  the  whole  produce  of  the  mines,  inasmuch  as 
they  had  not  kept  clear  and  distinct  accounts,  which  they  ought  to  have 
done.  The  Lord  Chancellor  held,  that  it  was  the  subject  of  further  direc- 
tions, and  not  of  exception.  He  remarks,  "If  the  result  is  that  the 
Master  cannot  take  the  account,  it  is  clearly  not  for  him,  without  a  fur- 
ther direction,  to  apply  the  great  principle,  familiar  both  at  law  and  in 
equity,  that  if  a  man,  having  undertaken  to  keep  the  property  of  another 
distinct,  mi.xes  it  with  his  own,  the  whole  must,  at  law  and  in  equity,  be 
taken  to  be  the  property  of  the  other,  until  the  former  puts  the  subject 
under  such  circumstances  that  it  may  be  distinguished  as  satisfactorily  as 
it  might  have  been  before  that  unauthorized  mixture  upon  his  part. 
There  may  be  cases  upon  which  the  Master  may  charge  parties  upon  that 
principle  ;  but  it  must  be  under  the  direction  of  the  Court,  whether  the 
case  is  proper." 

From  the  case  of  Lupton  v.  White,  this  principle  is  to  be  extracted — 
that  the  Commissioner  has  no  right  to  depart  from  the  instructions  by 
which  his  account  is  directed  to  be  made  up,  if  it  is  even  impossible,  by 
the  default  of  the  defendant,  to  conform  to  them.  He  must  report  the 
fact,  and  let  the  Court  give  him  fresh  directions.  If  the  case  proceeds 
ex  2)0''i'te,  it  is  the  business  of  the  Commissioner  to  examine  the  case  more 
minutely,  and  attend  more  particularly  to  see  that  justice  is  administered 
to  the  defendant,  than  if  he  had  attended  in  person.  The  proposition  is 
very  well  enforced  by  Lord  Redesdale,  in  the  case  of  Carew  v.  Johnston, 
2  Sch.  &  Lef.  300,  in  which  he  says,  "  The  decree  having  been  obtained, 
the  matter  proceeds  before  the  Master,  and  he  makes  a  report  which  I 
must  consider  as  the  report  of  the  party,  and  not  of  the  Master.  I  am 
afraid  reports  of  this  kind  are  too  often  made,  when  no  person  appears  on 
*9M\1  *'^'^^  side.  I  think  that  very  improper  for  it  is  the  duty  of  the 
-I  Master  to  take  the  account,  though  the  parties  who  might  resist 
the  claim  do  not  attend,  with  as  much  care  as  if  they  did,  and  even  with 
more  jealousy  ;  for  when  the  parties  do  attend,  it  is  to  be  expected  that 
they  will  attend  to  their  own  business." 

In  the  case  before  us,  the  Commissioner  can  have  no  difficulty  in 
making  up  his  report  according  to  the  directions  given,  if  he  will  take  the 
trouble  to  read  this  and  the  former  opinion  before  he  commences  his 
examination. 

The  defendant  is  clearly  not  entitled  to  commissions  on  the  receipts 
and  expenditures  of  years  in  which  he  did  not  make  returns  to  the  Ordi- 
nary. In  those  years  in  which  he  made  returns,  he  is  entitled  to  commis- 
sions. This  Court  has  no  power  to  order  an  issue,  to  ascertain  what 
extra  compensation  should  be  allowed  to  an  executor,  when  he  has  failed 
to  make  regular  returns.  The  default  deprives  him  of  the  commissions 
allowed  by  law,  and  also  the  right  to  recover  extra  compensation. 

It  is  ordered  and  decreed  that  Chancellor  Johnston's  decree  be  reversed, 
and  that  the  cause  be  remanded  with  instructions  to  the  Commissioner,  to 


*210]  CHARLESTON,    APRIL,    1833.  145 

make  up  his  report  according  to  the  principles  contained  in  the  former 
and  this  opinion. 

Earle,  J.,  concurred. 


GrEORGE  W.  Prescott  and  Robert  Eason  vs.  Sears  Hubbell,  George 
TiMMONS,  and  others. 

The  10th  section  of  the  Insolvent  Debtors'  Act,  which  incapacitates  the  debtor  from 
pleadin'ff  the  Statute  of  Limitation,  relates  only  to  demands  existing  at  the  time 
of  exhibiting  his  petition.  [*212] 

Lapse  of  time  in  Equity,  in  analogy  to  the  Statute  of  Limitation  at  Law,  will  be  a 
bar  to  relief  against  fraud. [*2Li] 

The  difference  with  regard  to  the  Stat,  of  Lim.,as  applied  to  a  case  of  fraud  at  Law 
or  in  Equity,  is  in  the  time  at  which  the  cause  of  action  is  considered  to  accrue  : 
at  law,  the  cause  of  action  is  regarded  as  accruing  from  the  perpetration  of  the 
fraud,  in  Equity  from  its  discovery;  and  therefore  in  Equity  the  statute  will  bar 
relief  against  fraud  in  four  years  after  discovery  ;  and  to  take  the  case  out  of  the 
statute  it  should  be  stated  in  the  bill,  that  the  fraud  was  not  discovered  until 
■within  four  years  before  the  bill  was  filed. [*214] 

The  Court  refused  to  permit  the  plaintiff"  to  amend  his  bill,  so  as  to  allege  that  the 
fraud  was  discovered  within  four  years,  when  it  appeared  the  fraud  was  known 
to  the  plaintiff  before  that  time.[*217] 

The  defendant,  Hubbell,  having  been  arrested  under  a  ca.  sa.,  applied 
to  the  Court  of  Common  Pleas  for  the  benefit  of  the  Insolvent  Debtors' 
Act ;  and,  in  conformity  *with  its  provisions,  filed  a  schedule  p^.^,  . 
of  his  estate.  The  creditors  being  dissatisfied,  filed  a  suggestion  L 
alleging  fraud  on  the  part  of  Hubbell,  in  the  conveyance  of  his  property, 
and  in  the  transfer  of  funds  which  were  invested  in  property  and  settled 
on  his  family.  It  did  not  appear  that  the  issue  on  this  suggestion  was 
made  up  or  tried,  but  the  defendant  amended  his  schedule,  so  as  to  include 
all  his  "right,  title,  and  interest  in  the  property  mentioned  in  the  sugges- 
tion ;"  and  on  executing  an  aSwSignment  to  the  plaintifi",  Prescott,  in  trust 
for  his  creditors,  he  was,  on  the  3d  October,  1821,  discharged  by  the 
Court. 

The  plaintiffs  are  judgment  creditors  of  Hubbell ;  Prescott's  judgment 
was  obtained  prior  to  the  discharge,  and  is  that  on  which  he  was  arrested  : 
Eason  was  a  suing  creditor  at  the  time  of  the  discharge,  and  obtained 
judgment  afterwards. 

The  bill  was  filed  in  March,  1829 :  its  object  is  to  set  aside  the  convey- 
ances by  Hubbell  to  the  defendants,  as  fraudulent,  and  to  subject  the 
property,  which  it  is  alleged  was  purchased  with  his  funds,  to  the  payment 
of  the  plaintiffs'  demands. 

The  defendant,  Hubbell,  in  his  answer,  relied  on  the  statute  of  limita- 
tions. 

The  cause  was  heard  at  Charleston,  January,  1832,  by  Chancellor  De 
Saussure.  a  great  deal  of  evidence  was  then  given  on  both  sides,  for 
the  purpose  of  proving  and  disproving  fraud  in  the  defendants,  but  whicli 
it  is  unnecessary,  under  the  view  taken  by  the  Court,  to  state.  The 
Chancellor  overruled  the  plea  of  the  statute,  and  ordered  an  issue  at  law 
to  try  the  questions  of  fraud. 
YoL.  I.—IO 


146  SOUTH    CAROLINA    EQUITY    REPORTS.  [*211 

The  defendant  appealed,  and  moved  to  reverse  this  decree,  on  the 
ground,  that  the  statute  of  limitations  is  a  bar  to  the  plaintiff's  bill. 

Smith,  for  the  motion,  cited  Booth  v.  Earl  of  Warrington,  13  Vin.  642  ; 
3  P.  W.  143  ;  1  M'C.  314  ;  G  Pet.  61. 

Hicnt,  contra. 

O'Neall,  J.     From  the  view  which  I  have  taken  of  this  case,  it  will 
*9i9-i  0"^y  ^^^  necessary  that  our  opinion  should  be  ^expressed  on  the 
"*  *^-'  statute  of  limitations  which  has  been  relied  upon  by  the  defend- 
ants, as  a  bar  to  the  claim  of  the  complainants. 

The  Chancellor  overruled  the  plea,  on  the  ground  that  "  an  insolvent 
debtor  is  not  at  liberty  to  plead  the  statute  of  limitations  in  cases  of 
alleged  fraud."     This  disability,  if  it  exist,  must  arise  out  of  some  provi- 
sion of  the  "Act  for  the  more  effectual  relief  of  insolvent  debtors,"  &c. 
The  10th  section  provides,  that  "whereas,  many  creditors  of  the  person 
so  sued  and  petitioning  for  his  or  her  discharge,  may  not  be  inclined  to 
accept  a  dividend  of  such  ])etitioner's  estate,  but  will  rather  wait  in  hopes 
of  securing  some  fuller  expectation  from  the  said  petitioner's  future  bet- 
ter fortune ;  but  in  as  much  as  the  said  creditors  by  note,  book  account, 
or  contract,  who,  through  indulgence  or  better   expectation  may  delay 
suits  against  such  petitioner,  may  become  barred  Ijy  the  act  of  limitations 
of  this   Province ;  be  it  therefore  enacted,  that  any  person  or  persons 
whatsoever,  who  shall  be  hereafter  in  the  custody  of  the  Provost  Marshal 
of  this  Province,  or  of  his  gaol  keeper  or  deputy,  and  who  shall  once 
petition  the  Justices  of  this  Province  for  his  or  her  discharge,  every  such 
person  or  persons,  his  or  their  executors  or  administrators,  shall  be  inca- 
pacitated ever  afterwards  to  plead  the  act  of  limitations  of  this  Province, 
in  bar  to  any  action  that  may  be  afterwards  brought  against  him  or  them, 
by  any  person  or  persons  that  were  his  or  their  creditors,  for  any  demand 
or  cause  of  action  that  existed  at  the  time  of  exhibiting  the  petition  for 
the  discharge  of  the  said  person  when  in  custody.    And  in  case  the  act  of 
limitation  of  this  Province  shall  afterwards  be  pleaded  by  any  such  per- 
son or  persons,  the  said  plea  shall  be  set  aside  by  the  Court  where  such 
action  shall  be  brought,  upon  motion  made  by  the  plaintiff  or  his  attorney 
in  such  action,  n])on  producing  the  petition  before  exhibited  by  the  de- 
fendant for  his  having  the  benefit  of  this  act."  P.  L.  251.     It  is  only 
necessary  that  the  clause  should  be  stated,  to  satisfy  every  one  that  it  does 
not  apply  to  this  case.     The  preamble,  which  is  said  to  be  the  key  to  the 
enactment,  shows  that  it  was  intended  for  the  protection  of  such  creditors 
*'>131  ^^^^°   might   neither   sue   nor   accept  a  *dividend  of  the  debtor's 
-J  estate.     The  very  next  clause  provides  the  means  whereby  evi- 
dence of  such  debts  may  be  perpetuated,  and  repeats  the  denial  of  the 
benefit  of  the  statute  of  limitations.   The  present  plaintiffs  were  suing  cred- 
itors, at  the  time  the  defendant,  Hubbell,took  the  benefit  of  the  insolvent 
debtors'  Act,  and  one  of  them  is  his  assignee  ;  they  cannot,  therefore,  claim 
that  as  against  them  he  cannot  plead  the  statute  of  limitations.     His 
discharge  under  the  insolvent  debtors'  Act  was  a  discharge  from  their 
debts,  and  the  only  claim  which  they  can  have  against  him,  is  under  the 
assignment.     The  "  demand  or  cause  of  action  "  arising  from  it,  did  not 
exist  "at  the  time  of  exhibiting  his  petition  for  his  discharge  ;"  it  is  sub- 


^213] 


CHARLESTON,    APRIL,    1833.  147 


sequent  thereto,  and  it  is  not  even  within  the  letter,  mncli  less  tlie  mean- 
ing of  the  section  quoted.  But  it  must  be  remembered,  that  Hubbell  in 
this  ease  claims  to  hold  the  property  in  dispute  not  for  himself,  but  as  a 
trustee  for  his  wife  and  children  ;  they  are  parties,  and  if  the  defence  of 
the  statute  of  limitations  was  not  even  competent  for  him,  it  would  be  for 
them,  and  if  sufficient  to  protect  them,  would  prevent  a  decree  from  being 
made  which  would  defeat  their  title.  It  is  therefore  perfectly  immaterial 
in  what  way  it  is  interposed,  whether  by  Hubbell  or  his  cestui  que  t7'usts, 
its  legal  elfect  must  be  considered  and  decided,  in  precisely  the  same 
manner  as  if  Hubbell  had  never  taken  the  benefit  of  the  insolvent  debtors' 
Act. 

It  is  true,  that  the  words  of  the  act  of  limitations  do  not  in  terms 
provide  a  time  within  which  such  suits  for  relief  against  frauds  must  be 
brought ;  yet  lapse  of  time  in  Equity,  in  analogy  to  the  statute,  has  been 
held  to  bar  relief  for  fraud.  If  an  action  at  law  were  brought  to  recover 
damages  for  a  fraud,  it  would  be  an  action  on  the  case  and  barred  in  four 
years,  by  the  provisions  of  the  Act  of  1712.  The  gravamen  of  the  action 
at  law  is  the  deceit  and  the  injury  consequential  on  it.  To  entitle  a  party 
to  relief  from  a  fraud  in  equity,  he  must  show  that  he  is  prejudiced  by  it, 
and  in  consequence  of  this  prejudice  or  injury  it  is  that  the  Court  pro- 
ceeds to  decree  against  the  fraud.  The  analogy  between  the  action  on 
the  case  for  a  fraud,  and  a  bill  in  equity  to  be  relieved  against  it,  is  as 
direct  as  can  exist  between  a  case  *in  a  Court  of  Law  and  a  case  r^^ij 
in  a  Court  of  Equity.  L 

When  does  the  cause  of  action  for  a  fraud  accrue  ?  In  equity,  there 
is  no  doubt  that  it  accrues  from  the  discovery  of  it.  The  party  may  then 
proceed  and  obtain  relief,  and  if  he  fail  to  do  so  for  four  years,  is  not  the 
reason  just  as  strong,  that  he  should  be  barred  in  equity,  as  at  law  ? 
The  only  difference  perhaps  in  the  law  in  this  respect,  as  applied  to  a 
case  at  law  or  in  equity,  arises  from  the  time  at  which  the  cause  of  action 
is  considered  as  accruing.  Generally,  the  legal  cause  of  action  is  regarded 
as  accruing  from  the  time  the  fraud  waS  perpetrated  ;  the  equitable  cause 
of  action,  from  the  discovery.  This  seems  to  me  the  only  distinction  ; 
and  the  statute  would  run  against  relief  from  a  fraud  from  the  time  of  its 
discovery,  wherever  an  action  at  law,  if  it  could  be  brought  for  the  same, 
would  be  within  the  act.  I  myself  regard  a  bill  in  equity  for  relief 
against  a  fraud  as  a  personal  action,  accruing  to  the  party  in  consequence 
of  the  injury  done  to  his  rights ;  and  that  generally,  he  would  be  barred 
in  four  years  from  the  discovery  of  the  fraud.  The  rule  in  equity  is  when 
more  than  four  years  have  elapsed  before  filing  the  bill  for  relief,  that  the 
complainant  should  state  in  his  bill  that  the  fraud  was  discovered  within 
four  years  before  the  bill  was  filed.  In  Vin.  Ab.  13,  542,  it  is  said, 
"  where  fraud  is,  no  length  of  time  can  bar.  And  it  was  admitted  by  the 
counsel  on  the  other  side,  that  no  time  will  bar  where  there  is  a  fraud,  but 
said  that  that  is  to  be  understood  where  the  fraud  is  concealed.  For  if 
it  be  known,  it  certainly  may,  and  of  this  opinion  Lord  Chancellor  KiN<i 
seemed  to  be."  The  same  doctrine  is  sustained  by  the  South  Sea  Com- 
pany V.  Wymondsel,  3  Pr.  AVm.  143.  The  case  of  Black  and  wife,  and 
others,  v.  M'Junkin,  executor  of  Thomas  et  al.,  decided  at  Columbia  by 
the  Court  of  Appeals  in  Equity,  proceeded  upon  the  principle  that  after 
a  lapse  of  four  years  from  the  discovery  of  the  fraud,  the  statute  would 


148  SOUTH    CAROLINA    EQUITY    REPORTS.  [*214 

bar  the  relief.  In  that  case,  an  insolvent  debtor  who  had  taken  the 
benefit  of  the  Act,  just  before  applying  to  be  discharged,  fraudulently  con- 
veyed certain  slaves  to  his  father.  The  bill  was  filed  by  the  suing 
*9i  ^1  *creditor,  but  there  was  no  allegation  in  the  bill  that  the  fraud  had 
"■  ^  been  discovered  within  four  years  before  the  filing  of  the  bill. 
The  original  bill  abated  by  the  death  of  the  elder  Thomas,  and  was  re- 
vived after  four  years,  against  his  executor,  and  the  legatees  of  the  slaves 
fraudulently  conveyed  to  him  by  his  son,  the  younger  Thomas.  It  was 
held,  by  the  whole  Court,  1st.  That  it  was  neceseary  that  it  should 
have  been  alleged  that  the  fraud  was  discovered  within  four  years  before 
the  filing  of  the  bill,  to  prevent  the  operation  of  the  statute  :  and,  2dly. 
That  the  plaintiffs  were  barred.  In  Yan  Rhyn  v.  Yincent,  1  M'C.  Ch. 
Rep.  310,  Judge  Nott  remarks  :  "And  even  in  cases  of  fraud,  the  Court 
of  Equity  will  allow  the  statute  to  run  from  the  time  the  fraud  is  dis- 
covered." 

These  authorities  put  it  beyond  all  question,  that  the  statute  will  run 
against  relief  claimed  in  cases  of  fraud,  from  the  time  it  is  discovered  ; 
and  that  to  take  the  case  out  of  the  statute,  it  is  necessary  that  it  should 
be  stated  in  the  bill  thSt  it  was  not  discovered  until  within  four  years 
before  the  bill  was  filed.  The  application  of  these  principles  to  the  case 
before  us,  is  plain  and  obvious.  For  it  is  plain,  that  whatever  was  the 
fraud  existing  in  the  conveyance  of  the  property  to  the  defendant  Hubbell, 
in  trust  for  his  wife  and  children,  it  existed  and  was  known  to  the  assignee, 
Prescott,  at  the  time  the  defendant  was  discharged  under  the  Insolvent 
Debtors'  Act.  The  suggestion  which  he  then  filed  to  prevent  his  dis- 
charge, incontestably  proves  that  fact.  It  is  not  set  out  in  the  bill,  that 
the  fact  of  fraud  in  the  conveyances  was  discovered  within  four  years 
before  the  filing  of  the  bill.  The  defendant,  Hubbell,  as  trustee,  and  his 
family  his  ceatui  que  trusts,  cannot  be  regarded  as  holding  by  a  secret 
fraud.  If  a  fraud  exists  in  the  transaction,  it  was  well  known,  and  they 
cannot,  therefore,  be  said  to  have  held  apparently  in  one  right,  and 
secretly  in  another,  which  would'have  dej-iived  them  of  the  benefit  of  the 
statute.  Their  rights  were  adverse  to  the  rights  of  Huljbell's  creditors. 
But  it  is  said,  the  statute  cannot  be  pleaded  to  the  judgment  obtained  by 
Prescott  against  Hubbell.  To  say  nothing  of  the  effect  of  the  assign- 
*216l  ™^"^  ^"^^  discharge  under  *the  Insolvent  Debtors'  Act,  which  is 
■^  itself  a  discharge  of  the  debt  to  Prescott,  and  of  course  of  the 
active  lien  of  the  judgment,  it  can,  I  think,  be  demonstrated,  that  the  bar 
to  the  relief  claimed  here  is  no  bar  to  the  judgment.  The  party  does  not 
come  here  to  have  execution  of  his  judgment,  or  to  recover  upon  it,  as 
his  immediate  cause  of  action  :  if  he  did,  then,  it  is  true,  the  statute 
would  not  apply.  His  remedy,  in  both  these  respects,  is  at  law.  If 
legally  the  property  in  dispute  is  subject  to  the  lien  of  the  judgment,  the 
complainant  has  no  business  in  this  Court — his  execution  would  have 
given  him  ample  relief.  But  the  title  to  the  property  claimed  to  be  sub- 
jected to  the  payment  of  the  plaintifi''s  debt,  never  was  in  Hubbell  in  his 
own  right.  He  is  a  mere  trustee,  to  whom  the  conveyance  was  made. 
There  can,  therefore,  be  no  legal  lien  of  the  judgment.  The  plaintiffs' 
equity  is,  that  the  money  of  Hubbell,  which  ought  to  have  been  applied 
to  the  payment  of  their  debts,  was  vested  in  the  purchase  of  the  property. 
This  at  most  is  a  mere  resulting  trust,  and  the  right  to  set  it  up  as  against 


*216]  CHARLESTON,  APRIL,  1833.  149 

the  defendants,  must  depend  upon  the  fact  whether  the  money  which  is 
the  foundation  of  it,  could  be  recovered  by  the  assignee  from  the  cestui 
que  trusts,  (to  whose  use  it  is  alleged  to  have  been  applied)  if  it  were  in 
their  hands  as  a  donation  from  Hubbell.  No  one  I  presume  will  doubt 
that  at  law  he  could  not  recover  it  after  four  years,  and  in  this  Court  the 
only  difference  as  to  the  operation  of  the  statute  of  limitations,  would  be 
the  substitution  of  the  discovery  of  the  fraud,  for  the  accrual  of  the  cause  of 
action  at  law.  It  was  known  to  him  in  1821,  as  he  alleges  in  his  sug- 
gestion that  the  property  was  purchased  with  Hubbell's  money.  Seven 
years  and  four  months  after  his  knowledge  of  it,  he  files  this  bill,  virtu- 
ally for  the  recovery  of  the  money  invested  in  the  purchase  of  the  pro- 
perty. To  a  claim  for  an  account  for  the  money  applied  by  Hubbell  in 
the  purchase  of  the  property,  the  statute  would  be  a  good  defence  by  his 
cestui  que  trusts;  and  it  seems  to  me  it  must  be  so  likewise  against 
the  claim  to  set  up  the  resulting  trust.  This  is  not  depriving  the  judg- 
ment of  any  of  its  legal  effects — it  is  merely  refusing  to  suffer  fraud  or  a 
resulting  trust,  to  be  set  up  to  defeat  a  *Iegal  title,  when  more  r*oii7 
than  four  years  have  elapsed,  after  the  plaintiffs  have  a  knowledge  ^ 
of  the  fact  on  which  their  claim  to  relief  is  predicated.  I  am,  therefore, 
satisfied  that  the  statute  is  a  protection  to  the  defendants.  A  motion 
was  made  for  leave  to  amend,  by  alleging  that  the  fraud  was  not  dis- 
covered until  within  four  years  before  the  filing  of  the  bill.  This  is  an 
application  to  the  discretion  of  the  Court — and  we  should  not  hesitate, 
even  at  this  late  stage  of  the  case,  to  allow  the  amendment,  if  any  good 
could  result  from  it.  But  the  facts  are  all  before  us,  and  we  are  perfectly 
satisfied  that  they  show  conclusively  that  the  fraud  was  known  to  the 
plaintiffs  more  than  four  years  before  the  filing  of  this  bill.  It  may  be, 
that  they  had  not  all  the  evidence  of  it  then  which  they  have  now ;  but 
that  is  not  the  point  on  which  the  question  turns — it  is,  whether  they 
knew  of  the  fraud,  not  whether  they  could  prove  it.  The  motion  to 
amend,  must,  therefore,  be  refused. 

It  is  ordered  and  decreed,  that  the  Chancellor's  decree  be  reversed, 
and  the  bill  be  dismissed. 

Johnson  and  Earle,  Js,,  concurred. 


Therese  Benoist,  Administratrix  of  J.  L.   Sompeyrac  vs.  Peter 
PoiRiER,  Administrator  of  Louis  De  Villers. 

One  who  was  authorized  by  power  of  attorney,  to  demand  and  receive  a  legacy  for 
his  principal  became  indebted  to  the  executor,  in  whose  hands  the  legacy  was, 
and  failed  ;  afterwards,  by  letter  to  the  executor,  he  acknowledged  that  he  wa3 
indebted  to  him  a  balance  of  two  thousand  eight  hundred  and  ninety-one  dollars, 
and  promised  to  account  to  his  principal  for  this  sum,  as  so  much  of  the  legacy; 
but  he  gave  no  discharge  to  the  executor,  nor  did  he  receive  one  from  his  debt, 
nor  was  there  any  agreement  that  one  demand  should  go  in  payment  ot  the  other  : 
Ifeld,  that  this  was  not  a  payment  by  the  executor,  which  would  discharge  him 
for  that  amount.[*22l] 

It  seems,  that  even  if  there  had  been  an  agreement  between  the  executor  and  tho 
attorney,  that  the  debt  due  from  the  latter  to  the  former,  should  be  regarded  as 
so  much  payment  of  the  legacy,  and  mutual  acquittances  given,  it  would  not, 
under  such  circumstances,  be  a  compliance  with  the  power,  and  therefore  void. 
[*222J 


150  SOUTH    CAROLINA    EQUITY    REPORTS.  [*217 

Theodore  Sompejrac,  by  his  last  will,  bearing  date  the  day  of 

1822,  gave  the  residue  of  his  estate,  to  be  held  by  his  executors, 


liable  to  the  draft  of  his  father,  or,  in  the  event  of  his  death,  of  his  mother- 
of  which  will  be  appointed  Louis  De  Yillers  and  A.  Fourgeaud,  his  execu- 
tors, and  soon  afterwards  died,  leaving  his  fiither,  Jean  Louis  Sonipeyrac, 
and  his  mother,  Desire  Sonipeyrac,  him  surviving.  De  Villers  and  Four- 
*9iQl  geaud  proved  the  will  and  *administered  the  assets;  the  residue 
-J  in  their  hands,  after  paying  the  debts  and  legacies,  was  $4,098, 
which  in  February,  1829,  De  Villers  passed  to  the  credit  of  De  Villers 
find  Poirier,  assignees  of  Sompeyrac  and  Petitpain,  upon  the  supposition 
that  Jean  Louis  Sompeyrac  was  indebted  to  them  in  an  equal  or  greater 
amount;  but  in  fact,  Jean  Louis  Sompeyrac  was  not  so  indebted.     The 

said  Jean  Louis  Sompeyrac  died  in *at  Bordeaux,  in  France, 

and  by  his  last  will  gave  all  his  estate  to  his  widow.  Desire  Sompeyrac ; 
l>ut  the  will  was  never  proved  in  America.  The  bill  was  filed  by  Therese 
Benoist,  to  whom  administration  of  the  estate  of  J.  L.  Sompeyrac  has 
been  committed  by  the  Ordinary  of  Charleston  District,  for  an  account 
and  settlement  of  the  estate  of  Theodore  Sompeyrac. 

The  defendant,  Peter  Poirier,  by  his  answer,  admits  the  balance  of 
$4,089,  for  which  the  estate  of  Louis  De  Villers  is  accountable;  but 
insists  that  a  part  of  the  sura,  to  wit,  $2,891  has  already  been  received 
by  Desire  Sompeyrac,  who,  as  executrix  of  J.  L.  Sompeyrac,  had  a  right 
to  receive  it,  and  is  also  the  party  beneficially  entitled  in  this  suit.  In 
support  of  his  defence,  the  following  case  was  made  at  the  trial. 

Jean  Louis  Sompeyra  and  Desire  Sompeyrac,  his  wife,  about  the  12th 
day  of  February,  1823,  gave  to  their  son,  Melisse  Sompeyrac,  a  general 
])0wer  of  attorney,  "to  demand  and  receive  all  such  sums  and  property 
as  they,  or  either  of  them,  were  entitled  to,  under  the  will  of  their  son, 
Theodore."  Melisse  Sompeyrac  came  to  Charleston,  and  entered  into 
business  with  Hyppolite  Petitpain,  under  the  firm  of  Sompeyrac  and 
Petitpain.  De  Villers  became  their  endorser  to  a  great  amount ;  and 
while  Melisse  Sompeyrac  was  in  Mexico,  Petitpain  executed  a  deed,  by 
which  he  assigned  all  the  goods,  moneys  and  effects  belonging  to  Som- 
peyrac and  Petitpain,  to  De  Villers  and  Poirier,  in  trust,  in  the  first 
place,  to  indemnify  them,  and  in  the  next  place,  to  satisfy  the  creditors 
generally  of  Sompeyrac  and  Petitpain.  Notice  of  this  assignment  was 
communicated  to  Melisse  Sompeyrac,  who  assented  to  it,  and  acknow- 
*9i  Q-|  ledged  that  he  held  *in  his  hands  $2,891,  for  which  he  was  account- 
-•  able  ;  but  insisted  on  retaining  it,  as  the  attorney  of  his  mother, 
who  was  entitled,  as  the  legatee  of  J.  L.  Sompeyrac,  to  the  residue  of 
Theodore  Sompeyrac's  estate,  in  the  hands  of  De  Villers  ;  as  appears  by 
the  following  letter : 

[Translation.]  "  Mexico,  15th  April,  1828. 

"Dear  Sir  : — I  have  received  your  friendly  letter  of  the  21st  Novem- 
ber, by  Mr.  Giraud.  I  will  not  repeat  to  you  what  I  have  said  in  my  former 
letters,  on  the  subject  of  the  enormous  losses  that  we  have  sustained  in 
this  country.  It  is  sufficient  that  they  have  been,  in  part,  the  cause  of 
our  ruin."  [Here  follows  a  detail  of  circumstances  which  it  is  unneces- 
sary to  state  ]  "I  saw  Mr.  Giraud  yesterday,  to  whom  I  gave  all  the 
accounts  relating  to  our  unfortunate  affairs.     You  will  see,  by  the  result 


*219]  CHARLESTON,  APRIL,  183o.  151 

that  there  is  a  sum  of  $2,891  51,  that  I  am  answerable  for,  ns  a  balance." 
[A  statement  of  his  partnership  accounts  and  commercial  transactions 
here  made,  is  omitted.] 

"You  will  see,  my  dear  sir,  that  I  am  accountable  for  the  above  men- 
tioned sum,  which  I  hold,  subject  to  the  order  of  whoever  is  entitled. 
But  by  the  letters,  v/hich  I  have  received  from  Charleston,  I  am  informed 
that  you  have  received  from  the  estate  of  my  brother,  five  or  six  thousand 
dollars,  more  or  less.  From  this  sum  must  be  deducted  the  amount  due 
to  Messrs  LePrince  &  Dumont,  which  I  consider  perfectly  just.  And  as 
to  that  of  the  Messrs.  Benoists,  you  can  have  an  understanding  with 
them,  The  residue  will  belong  to  my  mother,  who  is  legally  the  legatee, 
under  my  father's  will ;  and  as  I  have  been  authorized  by  their  joint  and 
several  power  of  attorney,  which  is  deposited  in  the  French  Consulate  at 
Charleston,  I  shall  be  obliged  to  give  an  account  of  the  sum  which  you 
will  have  received.  Have  the  goodness  to  hand  to  Mr.  Giraud  a  state- 
ment of  what  you  have  received,  in  order  that  we  may  ascertain  the 
balance.  You  can  come  to  an  understanding  with  friend  Fourgeaud,  to 
whom  I  will  write  ou  this  subject ;  and  will  speak  to  Madame  Benoist,  to 
whom  I  have  sent  a  copy  of  ray  power  of  attorney."  *  *  * 

*"I  received  Mr.  Poirier's  letter  at  the  same  time  with  yours,  r^g^,. 
You  may  communicate  this  to  him.  L  -'-' 

I  have  the  honor  to  be,  &c." 

The  assets  of  Sompeyrac  and  Petitpain  fell  short  of  the  sums  for  which 
DeVillers  was  responsible  for  them  ;  and  a  very  large  sum  is  still  due  him 
on  that  account.  To  prove  that  this  sum  had  been  actually  paid  to  De- 
sire Sompeyrac,  the  following  letter  from  her  was  produced. 

[Translation.]  "  Bor^deaux,  28th  June,  1831. 

"Sir: — I  have  received  your  letter  of  16th  May,  which  informs  me 
that  you  are  administrator  of  the  estate  of  the  late  Mr.  DeVillers,  and 
that  you  have  in  your  hands  the  sum  of  $4,089,  arising  from  the  estate  of 
my  deceased  son,  Theodore,  of  which  you  say  that  my  son  Melisse  ought 
to  account  to  me  for  $2,891  55,  and  that  you  have  no  objection  to  pay 
the  difference  to  my  attorney.  My  sou  Melisse  has  been  a  long  time 
absent,  I  presume  in  England.  I  have  just  had  his  papers  examined  by 
one  of  my  friends.  He  has  found  in  effect  an  account  of  his  agency, 
dated  Mexico,  29th  February,  1828,  balanced  by  $2,891  51 ;  but  my 
friend  remarked  that  this  account  had  no  connexion  with  the  estate  of  m}' 
son  Theodore,  but  only  with  the  house  of  Sompeyrac  &  Petitpain,  of 
Charleston.  These  gentlemen  owe  to  my  deceased  husband  a  large  sum 
for  advances  and  shipments  which  he  made  for  their  account,  and  the 
above  named  sum  would  be  but  a  small  set  off.  However,  sir,  as  I  am 
an  enemy  of  law  suits,  I  write  to  my  mother  by  the  same  opportunity,  and 
engage  her  and  give  her  full  authority  to  settle  with  you  definitively  and 
amicably,  and  to  see,  if  necessary,  some  mutual  friends,  who  can  decide 
the  matter.  I  recommend  to  her,  in  my  behalf,  to  avoid  the  expenses  of 
the  law.  Be  pleased  sir,  to  see  her  on  the  subject,  and  believe  me  your 
devoted  servant,  &c." 

At  May  Term,  1832,  the  case  came  before  his  Honor,  Chancellor  De 
Saussure,  who  made  the  following  decree. 


152  SOUTH    CAROLINA    EQUITY    REPORTS.  [*220 

"  It  appears  by  the  answer  of  Mr.  Poirier,  that  on  settling  the  affairs 
of  Theodore  Sorapeyrac,  there  is  a  balance  of  $4,089  due  by  the  execu- 
tors to  the  estate  of  Theodore  Sompeyrac,  which  is  ready  to  be  paid  over 
^gg,-]  to  the  legal  representatives  of  *Jean  Louis  Sompeyrac,  the  leg- 
-J  atee,  unless  the  Court  should  be  of  opinion  that  the  estate  of  De 
Villers  is  entitled  to  retain  the  whole  or  part  of  the  above  sum,  under  the 
following  circumstances  :  After  the  death  of  Theodore  Sompeyrac,  his 
father  and  residuary  legatee  (and  mother)  gave  a  power  of  attorney  to 
his  son,  Melisse  Sompeyrac,  to  collect  and  receive  whatever  might  be 
coming  to  him  from  the  estate  of  his  son  Theodore.  Melisse  came  to 
this  country,  formed  a  co-partnership  with  Mr.  Petitpain,  carried  goods  to 
Mexico,  and  failed  in  debt  to  DeYillers. 

"  The  administrator  of  DeVillers  claims  the  right  to  deduct  from  the 
balance  due  by  the  executors  of  Theodore  Sompeyrac  to  the  estate  of 
John  Louis  Sompeyrac,  the  amount  due  by  Melisse,  or  rather  by  Som- 
peyrac &  Petitpain,  to  DeVillers. 

"It  appears  to  me  that  these  demands  are  entirely  indistinct  rights, 
and  cannot  be  set  off  as  claimed.  The  administratrix  of  J.  L.  Sompey- 
rac is  entitled  to  be  paid  the  above  balance,  to  be  applied  in  the  course 
of  administration ;  and  if  Melisse  is  entitled  to  any  part  of  the  funds, 
the  administratrix  to  apply  his  share  to  pay  his  debt.  It  is  therefore 
ordered  and  decreed,  that  the  defendant  pay  to  the  complainant  the 
balance  admitted  to  be  due  to  the  representatives  of  John  Louis  Sompey- 
rac, with  interests  and  costs  of  this  suit." 

From  this  decree  the  defendant,  Peter  Poirier,  appeals,  and  insists  that 
the  real  question  is  whether  Desire  Sompeyrac,  the  widow  and  executrix 
in  France,  of  Jean  Louis  Sompeyrac,  received,  through  her  attorney  and 
son,  Melisse  Sompeyrac,  the  sum  of  $2,89L 

That  this  question  is  by  the  evidence  settled  in  the  affirmative,  and  that 
of  course  the  plaintiff  in  this  action,  suing  for  the  benefit  of  Desire  Som- 
peyrac, can  only  recover  the  residue,  after  deducting  $2,89L 

Pettigru,  for  the  appellant. 

Earle,  J.  The  Chancellor  refused  to  allow  the  defendant  the  benefit 
of  $2,891,  which  he  claimed  to  have  deducted  from  the  plaintiff's  demand, 
*9991  ^s  so  much  received  by  *Melisse  Sompeyrac,  the  agent  and  attor- 
"'-J  ney  of  Desire  Sompeyrac,  for  whose  benefit  the  suit  is  brought. 
It  is  alleged  that  the  Chancellor  is  mistaken,  in  saying  that  the  "  demands 
are  entirely  in  distinct  rights,  and  cannot  be  set  off  as  claimed  :"  for  the 
defence  is  not  set  up  by  way  of  discount,  but  of  actual  payment ;  and 
that  this  defence  is  supported  by  the  evidence.  Passing  by  any  objection 
which  might  be  raised  to  the  validity  of  the  power  itself,  as  having  been 
executed  by  a  married  woman,  at  a  time  when  she  had  no  subsisting  in- 
terest ;  or  admitting  that  there  may  be  evidence  of  a  subsequent  confir- 
mation, it  is  not  very  clear  that  the  Chancellor  is  mistaken  in  supposing 
this  to  be  a  naked  offer  to  set  up  against  the  demand  of  the  plaintiff,  a 
debt  due  to  the  defendant's  intestate,  from  the  plaintiff's  agent.  Melisse 
Sompeyrac,  the  agent  and  attorney  of  Desire  Sompeyrac,  at  the  utmost, 
only  acknowledges  himself  to  be  indebted  to  DeVillers  in  the  sum  of 
$2,891,  which  he  is  answerable  for,  as  a  balance ;  and  after  referring  to 


*2-i2] 


CHARLESTON,    APRIL,    1833.  153 


the  assets  of  his  brother,  in  the  hands  of  DeYillers,  and  to  liis  power  of 
attorney,  professes  to  be  accountable  to  Desire  Sompeyruc,  his  mother, 
for  that  sum.  This  would  be  giving  his  letter  a  most  liberal  construction 
for  the  defendant.  There  is  no  evidence  that  DeYillers  ever  assented  to 
this  proposition — he  did  not  discharge  Melisse  Sompeyrac,  nor  receive 
from  him  any  acquittance,  from  the  demand  of  the  plaintiff.  So  far  as 
there  is  evidence,  it  is  the  reverse ;  from  the  letter  of  Desire  Sompeyrac, 
three  years  after  the  date  of  that  of  Melisse  Sompeyrac  to  himself,  he 
seems  to  have  stated  to  her,  (and  the  evidence  comes  from  himself,)  that 
her  son  ought  to  account  for  the  sum  of  $2,891.  There  is  not  even  an 
agreement,  between  the  attorney  and  DeVillers,  to  regard  the  balance 
due  the  latter  from  the  former,  as  a  payment  of  so  much  of  the 
legacy. 

If  it  were  otherwise,  and  admitting,  for  the  sake  of  argument,  that 
there  was  an  agreement  to  that  effect,  and  mutual  acquittances,  yet  it 
would  not  be  a  compliance  with  the  power,  and  therefore  void.  The 
terras  of  the  power  are  certainly  as  various,  and  the  authority  given  is  as 
comprehensive,  as  can  well  be  imagined.  Yet,  in  giving  it  its  true 
*interpretation,  and  in  deciding  upon  the  conformity  of  his  act,  pooQ 
under  it,  we  must  have  regard  to  the  object  originally  had  in  view,  L 
and  the  means  contemplated  through  the  agency  of  the  attorney.  The 
power  is  dated  12th  February,  1823,  very  soon  after  the  death  of  Theo- 
dore Sompeyrac,  their  son,  and  the  primary  object  was  to  recover  for 
them,  and  in  their  behalf,  his  estate  ;  and  the  general  authority,  first 
given,  is  to  seek  for  and  recover  all  property,  real  and  personal,  which 
may  belong  to  the  estate  of  the  said  Theodore  Sompeyrac.  The  subse- 
quent specification  of  powers,  as  minute  as  it  is  possible,  seems  to  con- 
template that  the  attorney  is  to  take  upon  him  the  actual  administration 
of  the  estate,  perhaps  without  knowledge  of  the  will ;  for  many  things  he 
was  appointed  to  do,  could  only  be  done,  without  doubt,  by  an  executor 
or  administrator — when,  therefore,  power  is  given  to  renounce  claim  to 
the  debts  and  credits  of  the  estate,  and  "in  all  cases  where  it  may  be 
necessary,  to  compound,  compromise,  covenant,  and  appoint  arbitrators," 
these  taken  in  connection  with  other  powers,  as  to  "  sue  for  all  sums  of 
money,  pay  all  that  may  be  due,"  evidently  have  reference  to  a  general 
course  of  administration,  for  the  purpose  of  realizing  the  assets,  and  cer- 
tainly do  not  contemplate  the  intervention  of  an  executor  or  administra- 
tor, from  whom  alone  the  attoi'ney  could  receive  the  fund,  and  whom 
alone  it  would  be  necessary  to  sue.  The  power  to  renounce,  to  compound, 
to  compromise,  had  relation  only  to  debts  and  claims,  existing  for  and 
against  the  estate.  It  is  true,  th«  power  must  be  regarded  as  both  gen- 
eral and  special ;  and  after  the  estate  had  been  fully  administered  by  the 
executors,  who  alone  had  control  over  it,  Melisse  Sompeyrac,  as  attorney 
under  the  power,  had  unquestionable  authority  to  receive  the  legacy  Irora 
them.  But  in  that  state  of  things,  with  full  knowledge  that  the  whole 
estate  was  actually  in  the  hands  of  the  executor,  as  he  admits,  upon  the 
most  liberal  construction  of  the  power  he  had  authority  only  to  demana 
and  receive  payment,  and,  as  a  consequence,  on  nonpayment,_  to  ^"^"J"^J 
proceedings.  If  the  power  were  to  receive  payment  only,  it  is  clear  that 
nothing  but  an  actual*  receipt  of  the  money  would  sutliee.  The  [-*224 
attorney,  under  such  a  power,  could  not  accept  a  note  of  another, 


154:  SOUTH    CAROLINA    EQUITY    REPORTS.  [*224 

in  discharge.  Sucli  an  acceptance  would  not  bind  the  principal ;  and  if 
the  principal  would  not  be  bound  in  that  case,  certainly  he  would  not  be 
bound  where  the  attorney  agrees  to  accept,  in  discharge,  an  unliquidated 
claim  or  demand  upon  another,  an  insolvent  person.  11  Mod.  71,  87  ",  '2 
Ld.  Ray.  928.  Here  the  case  is  still  stronger  against  the  defendant  and 
attorney,  for  the  claim  and  demand  alleged  to  be  accepted,  in  discharge, 
was  one  upon  the  attorney  himself,  which  the  former  had  no  other  means 
of  securing,  and  the  latter  no  other  means  of  paying.  This  can  never 
be  allowed — and  if  we  construe  the  words,  "compound  and  compromise" 
in  their  most  enlarged  sense,  and  as  applying  as  well  to  the  claim  upon 
the  executors  as  to  claims  previous  to  administration,  it  would  be  equally 
a  violation  of  law,  and  a  fraud  upon  the  principal,  to  permit  the  attorney 
to  compound  or  compromise  the  right  of  the  principal,  by  accepting  in 
discharge  of  a  claim  which  he  knew  to  be  perfectly  good,  a  debt  upon 
himself,  an  insolvent  person  according  to  his  own  acknowledgment. 
The  decree  of  the  Chancellor  is  affirmed. 

Johnson  and  O'jSTeall,  Js.,  concurred. 


Sarah  M.  Drayton  v.  Thomas  S.  Grimke,  Administrator,  and  others. 

The  testator  by  his  will,  disposed  of  his  whole  estate,  and  amongst  other  things, 
bequeathed  certain  negroes  to  his  son,  W.  II.  D.  during  life, remainder  over;  and 
by  another  clause,  directs  "his  estate  to  be  kept  together  until  his  debts  are 
paid ;  it  was  held,  that  the  testator  meant  no  more  than  that  the  absolute  right 
of  the  legatees  should  not  vest  until  his  debts  were  paid  ;  that  the  restrictive 
clause  applied  only  to  the  mass  of  the  estate,  and  not  to  the  specific  legacy  ;  and 
(the  tenant  for  life  being  dead,)  that  the  legatee  in  remainder  was  entitled  to  the 
immediate  possession  of  the  negroes,  although  the  debts  were  not  paid,  and  could 
retain  them  until  the  rest  of  the  estate  should  prove  insufficient  to  pay  the 
debts.  [*225] 

A  bequest  of  "  Driver  Dick  and  his  family,  to  wit,  his  wife  and  children,"  includes 
only  the  wife  then  living,  and  the  issue  of  their  cohabitation.  [*227] 

Where  a  contingent  legacy  in  remainder  was  given  on  the  legatee's  attaining 
twenty-one,  and  assuming  the  surname  of  the  testator,  and  there  was  nothing  iu 
the  will  showing  an  intention  on  the  part  of  the  testator  to  provide  a  fund  for 
maintenance  and  education:  Held,  that  the  legatee  in  remainder  was  not  entitled 
to  the  intermediate  profits  of  the  legacy,  from  the  death  of  the  tenant  for  life 
until  the  estate  vested  in  him.[*227] 

Earle,  J.  The  questions  presente(^for  the  consideration  of  the  Court, 
arise  under  the  will  of  Thomas  Drayton,  deceased,  and  relate  to  the  con- 
tingent legacy  to  Thomas  Drayton  Grimke,  iu  remainder,  on  his  attaining 
the  age  of  twenty-one  years,  and  assuming  the  surname  of  the  testator, 
the  event  having  occurred,  and  the  condition  being  complied  with.  The 
*99'S1  ^^^^^^  is  in  these  words.  "  Item,  I  give  and  bequeath  *my  driver 
-"  Dick,  and  his  family,  to  wit,  his  wife  and  children  ;  also  my  carpen- 
ters, Robert,  Joe  and  Jim,  and  my  house  servants,  George  and  Daniel, 
with  the  future  issue  of  the  females,  from  this  date,  to  my  son  William 
Henry  Drayton  during  his  natural  life,"  with  limitation  over,  and  on 
failure  thereof,  a  portion  of  the  said  negroes  the  testator  bequeaths  to  his 


*225]  CHARLESTON,    APRIL,    1833.  155 

grandson,  on  the  event  and  condition  above  stated.  Having  attained 
twenty-one  years  of  age  and  assumed  the  name  of  Thomas  Grimke  Drayton 
the  previous  limitation  having  failed,  and  the  legacy  having  vested,  he 
claims  the  present  possession  of  the  negroes  ;  and  the  question,  wliich  is 
confined  by  the  case  made  to  driver  Dick  and  family,  George  a  coachman 
and  Robert  a  carpenter,  is  whether  he  is  entitled  to  the  immediate  pos- 
session of  them,  or  whether  they  are  embraced  within  the  general  provi- 
sion of  the  first  clause  of  the  will  in  these  words,  "  I  will  order  and  direct, 
that  my  estate  be  kept  together  until  my  just  debts  are  fully  paid  and 
satisfied ;"  it  being  admitted  that  this  has  not  yet  been  accomplished.  It 
is  conceived  that  this  question  has  been  concluded  by  the  opinion  of  the 
Court  of  Appeals,  on  other  clauses  of  the  will  containing  bequests  to  the 
daughters  of  negroes,  of  a  similar  character  and  using  the  same  phrase- 
ology ;  as  "  I  give  and  bequeath  the  following  house  servants,  to  wit,  Sam, 
London  and  Carpenter  Abrara,  with  the  increase  to  such  of  my  daughters 
as  are  unmarried  ^t  ray  death,  as  long  as  they  shall  continue  unmarried  ;" 
and  as  in  this  clause,  "  I  give  and  devise  to  such  of  my  daughters  as  shall 
continue  unmarried  at  my  death  the  use  of  my  plantatation  on  Ashley 
called  Magnolia,  and  the  adjoining  tracts."  Upon  these  and  other  similar 
clauses  containing  bequests  to  the  daughters,  this  Court  held  an  Appeal 
from  the  Circuit  decree  of  the  Chancellor,  that  this  property,  Magnolia 
and  the  other  tracts  of  land,  as  well  as  the  negroes,  were  exempted  from  the 
operation  of  the  general  clause  declaring  the  estate  to  be  kept  together, 
that  the  testator  did  not  intend  to  deprive  the  objects  of  his  affection  and 
bounty  of  the  immediate  use  of  the  property,  and  that  they  were  entitled  to 
present  possession.     It  is  conceived,  that  all  the  reasoning  of  the  Court 


in  that  case,  applies  with  equal  force  to  the  *clause  now  in  ques- 


[*226 


tion  ;  and  I  think  the  Chancellor  in  the  present  case  has  been  led 
into  some  misapprehension  in  the  view  he  has  taken  of  that  decision. 
Magnolia,  a  place  no  longer  cultivated,  and  the  carriage  and  horses,  were, 
it  is  true,  considered  as  unproductive,  not  available  to  any  extent  in  pay- 
ing off  the  debts ;  and  it  seems  to  be  insisted,  that  the  testator  could  not 
have  intended  to  deprive  his  daughters  of  the  present  use  or  to  postpone 
the  enjoyment  until  the  legacy  might  be  no  longer  beneficial.  But  it 
could  not  be  well  or  truly  said,  that  the  negroes,  although  not  field  hands, 
were  unproductive,  for  there  were  three  fellows,  one  a  carpenter,  and 
three  grown  women,  contained  in  the  clause  in  favor  of  the  unmarried 
daughter.  The  Court  say,  "  by  the  clause  kept  together  until  the  debts 
are  paid,"  the  testator  meant  no  more  than  that  the  absolute  right  of  the 
legatees  and  devisees  in  their  respective  shares  should  not  vest  until  the 
debts  were  paid,  because,  although  the  productive  part  of  the  estate  was 
competent  to  the  payment  of  his  debts  at  that  time,  yet  by  some  casualty 
this  expectation  may  have  been  disappointed,  and  in  that  event  the  specific 
legacies  may  Jiave  been  necessary  for  the  payment  of  the  debts,  and  this 
is  by  no  means  inconsistent  with  the  present  use  by  the  respective  legatees. 
They  may  enjoy  the  property  until  that  event  shall  happen,  or  until  the 
claims  of  the  creditors  are  enforced,  which  the  testator  would  not  have 
restrained  by  any  provision  in  his  will." 

I  think,  therefore,  that  the  Court  intended  to  decide  that  the  general 
clause,  directing  the  estate  to  be  kept  together,  was  not  intended  to  era- 
brace  the  specific  legacies— and  that   all   the   negroes   specifically  be- 


156  SOUTH    CAROLINA    EQUITY   REPORTS.  [*226 

queathed,  passed  immediately.  Having  so  held  in  relation  to  the  devises 
and  bequests  to  the  daughters,  a  different  rule  of  construction  cannot  now 
be  adopted,  in  relation  to  a  clause  using  the  same  phraseology,  and  be- 
((ueathing  negroes  of  a  similar  description.  It  will  be  borne  in  mind, 
that  they  formed  but  a  small  portion  of  the  estate,  and  the  Court  seems 
to  have  considered  the  restrictive  clause  as  intended  only  to  apply  to  the 
mass  of  the  estate,  which  forms  the  residue  for  final  distribution.  This 
*c)9»7n  ■^isw  is  strengthed  by  *the  fact  that  William  Henry  Drayton  the  first 
-l  taker,  had  but  a  life  estate.  And  as  he  had  no  other  estate  than 
this,  and  the  mass  of  property  intended  for  him  constituted  the  fund  for 
the  payment  of  debts,  it  is  most  likely  that  the  special  provision  in  this 
'•lause  was  intended  for  his.immediate  use — a  portion  of  this  legacy  having 
now  vested  in  Tliomas  Grirake  Drayton,  it  is  the  opinion  of  this  Court 
that  he  is  entitled  to  the  immediate  possession  of  the  negroes  in  ques- 
tion. The  decree  of  the  Chancellor,  on  this  part  of  the  case,  is  therefore 
reversed. 

Another  question  relates  to  the  meaning  of  "  Driver  Dick  and  his 
family,  to  wit,  his  wife  and  children  ;"  and  as  Dick,  at  the  date  of  the* 
will,  had  children  by  former  wives  then  dead,  it  is  asked  whether  they 
pass  under  the  term  'children.'  The  testator,  by  adding  the  words  "to 
wit,  his  wife  and  children,"  has  clearly  put  the  same  construction  on  the 
word  "family,"  which  the  Court  would  have  done  after  the  case  of 
Pringle  v.  Executors  of  M'Pherson,  2  Eq.  Rep.  524,  and  obviously  in- 
tended only  the  wife  then  living  at  the  dale  of  the  will,  and  the  issue  of 
their  cohabitation,  as  the  Chancellor  has  decided.  Their  being  grand- 
children born  after  the  execution  of  the  will,  it  might  be  questioned,  since 
the  case  of  Tydiman  v.  Rose,  decided  here  last  term,  whether  they  would 
pass.  But  the  terms  of  the  bequest  avoid  this  question,  for  they  ex- 
pressly include  the  children  of  Dick,  with  the  future  issue  of  the  females, 
from  the  date. 

The  last  question  relates  to  the  intermediate  profits,  from  the  death  of 
William  Henry  Drayton,  the  first  tenant  for  life ;  and  it  is  asked,  whether 
Thomas  Grimke  Drayton  is  entitled  to  receive  them,  or  they  become  a 
portion  of  the  residue  for  the  payment  of  debts.  This  question  was 
fully  considered  by  this  Court,  in  a  former  occasion,  in  relation  to  this 
very  legacy,  and  it  was  decided,  that  as  the  legacy  to  the  present  claimant, 
and  others  standing  in  the  same  relation,  was  contingent,  and  there  was 
nothing  in  the  will  to  indicate  an  intention,  on  the  part  of  the  testator,  to 
provide  a  fund  for  their  maintenance  and  education,  they  were  not 
*298"l  ^"^^^^^^  ^^  interest.  Ihe  intermediate  *profits  stand  under  the 
-I  will  in  the  place  of  interest;  if  Mr.  Drayton  was  not  entitled  to 
interest  until  the  legacy  vested,  he  is  not  entitled  to  the  profits.  On  the 
two  last  questions  presented,  the  decree  of  the  Chancellor  is  afiBrmed. 

Johnson  and  O'Neall,  Js.,  concurred. 

King,  for  the  appellant. 

Pettigru,  contra. 


'228]  CHARLESTON,    APRIL,    1833.  157 


Magwood  and  Patterson  v.  Agnes  Johnson,  and  others. 

How  far  and  under  what  circumstances,  trust  estates  will  be  held  liable  for  debts 
contracted  for  their  benefit,  or  in  furtherance  of  the  objects  of  the  trust.  [*231] 

The  equity  of  a  creditor  to  render  a  trust  estate  liable  for  his  debt,  is  that  he  has 
advanced  his  money,  or  given  his  credit  to  effect  the  objects  of  the  trust,  and  in 
charging  trust  estates  with  such  debts,  every  estate  must  bear  its  own  burthens. 
[^232] 

To  expend  money  for  the  benefit  of  a  trust  estate,  means  either  adding  to  its  value 
or  defraying  charges  to  which  it  would  be  liable. [*2.34] 

The  wife's  separate  estate,  in  general,  is  not  liable  for  the  expenses  of  herself  and 
family — the  husband,  if  he  be  of  ability,  is  bound  to  support  his  family  ;  and  if 
he  contract  debts  for  the  support  of  his  wife  and  children,  and  the  credit  is  given 
to  him,  neither  the  separate  estate  of  the  wife,  nor  the  remainder  to  the  children, 
is  liable  for  such  debts,  although  the  husband  should  prove  insolvent. [*234] 

Although  the  wife  cannot  by  her  own  mere  act,  charge  her  separate  estate,  if  she 
is  under  the  necessity  of  supporting  herself  and  family  on  the  credit  of  her 
estate,  she  may  do  so,  but  the  Court,  before  making  her  estate  liable,  will  see 
that  such  necessity  existed,  and  that  the  advances  of  money  or  goods  were 
proper  ;  and  with  respect  to  such  an  account,  the  dealings  should  appear  to  have 
been  bona  fide  with  the  wife,  and  not  with  the  husband:  Therefore  where,  by 
marriage  settlement,  the  fortune  of  the  wife  was  settled  to  her  separate  use 
during  life,  remainder  to  the  issue  of  them  arriage :  and  the  husband's  estate 
was  settled  on  himself  during  life,  remainder  also  to  the  issue,  subject  to  an 
annuity  to  the  wife  ;  and  the  husband,  during  coverture,  having  charge  of  the 
trust  estates,  contracted  debts  for  necessaries  for  his  family,  and  for  supplies  to 
the  plantations,  and  died  insolvent:  Held,  that  neither  the  life  estate  of  the  wife 
nor  the  remainder  of  the  children,  was  liable  for  such  debts  ;  but  if  the  husband 
acted  as  his  wife's  agent,  in  furnishing  necessaries  for  herself  and  family,  and  in 
procuring  supplies  for  her  separate  estate,  and  if  such  an  account  was  necessary 
and  proper,  her  separate  estate  will  be  charged  with  it. ["230] 

By  a  marriage  contract,  bearing  date  the  8th  of  April,  1807,  between 
Archibald  Simpson  Johnson,  of  the  first  part;  Agnes  Evving  of  the 
second  part ;  and  James  Ewing,  John  Evving,  Robert  William  Ewing  and 
David  Lamb,  trustees,  of  the  third  part ;  it  was  agreed,  that  all  the  estate 
to  which  Miss  Ewing  was  entitled,' and  nearly  all  Mr.  Johnston's,  should 
be  settled  as  follows,  to  wit:  the  fortune  of  the  lady,  to  her  sole  and 
separate  use  during  her  life,  and  after  her  decease,  to  the  issue  of  the 
marriage :  and  the  estate  of  A.  S.  Johnston,  to  his  use  during  life,  and 
after  his  decease,  in  trust,  to  raise  an  annuity  of  £200  per  annum,  payable 
to  the  said  Agnes  in  case  she  survived  him,  during  her  life,  and  subject 
thereto,  and  then  to  the  issue  of  the  marriage. 

After  the  marriage,  negroes  were  bought  with  Mrs.  Johnston's  money, 
and  placed  with  Mr.  Johnston,  on  his  plantation,  nor  did  the  trustees 
interfere  ;  but  the  whole  estate  was  under  one  management,  in  the  hands 
of  Mr.  Johnston.  No  deed  was  executed,  to  carry  the  contract  mto  exe- 
cution. From  untoward  circumstances,  Mr.  Johnston  was  compelled  to 
live  on  credit.  In  January,  1818,  he  borrowed*  from  a  fnend  |-^229 
$2,000,  and  immediately  laid  it  out  in  paying  off  pressing  demands 
and  by  the  end  of  the  month  was  again  in  distress.  He  aiM\'i^'<'  to  Mag- 
wood  &  Patterson,  and  they  agreed  to  indorse  his  note  lor  j>d,UUU,  upon 
his  giving  them  the  bond  of  himself  and  Mrs.  Jolmston  and  a  mortgage 
of  three  negroes,  as  security.  The  bond  was  executed  on  the  3d  Feb- 
ruary, 1818. 


158  SOUTH    CAROLINA    EQUITY    EEPORTS.  [*229 


The  application  of  the  money 

by  Mr.  Johnson, 

was  as  follows  : 

For  carriage  and  horses, 

•         .         .         • 

$726  00 

Medical  attendance  on 

plantation, 

106  68 

Educating  children,    . 

77  00 

Plantation  expenses,  . 

8  19 

House  expenses, 

159  62 

Grocer's  bill. 

117  78 

Upholsterer's  do. 

109  04 

Druggist's        bill. 

46  43 

Physician's        do. 

114  00 

Ship  chandler's  do. 

92   12 

Negro  cloth, 

234  62 

Overseer, 

124  00 

Tailor's  bill,       . 

20  00 

Tinman's  do. 

21  [yi 

Jeweller's  do.     . 

42  00 

Grocer's    do.     . 

350  00 

Corn  for  plantation,   . 

188  10 

Plantation  account,    . 

42  75 

Trust  estate, 

10  00 

Medical  account, 

37  87 

House, 

10  87 

Education, 

77   00 

Horses, 

138  00 

Plantation, 

8  00 

House, 

159  62 

The  crop  of  1818  failed.  They  made  about  half  a  cotten  crop,  which 
was  applied  to  the  loan  made  in  January  ;  the  rest  was  not  enough  for 
the  subsistence  of  the  negroes  for  three  months.  Magwood  &  Patterson 
continued  their  assistance — they  renewed  the  note,  paying  the  in- 
*2S0l  ^^•'^^^*  ^''^"^  ^''^^^  to  time,  and,furiiished  the  plantation  and  family 
-^  with  necessaries.  On  the  15th  of  September,  1819,  Mr.  Johnston 
died,  insolvent.  Mrs.  Johnston  administered  on  his  estate.  At  the 
time  of  his  death,  he  was  indebted  to  Magwood  «fc  Patterson  $1,124  84, 
for  such  advances,  besides  the  note  which  tliey  afterwards  paid  off.  Mrs. 
Johnston  sent  the  crop  of  1819  to  Magwood  &  Patterson,  who  retained 
the  same  for  their  debt.  Of  the  negroes  mortgaged,  one  was  subject  to 
a  prior  incumbrance,  the  remaining  two  were  sold,  and  the  proceeds 
placed  to  the  credit  of  the  note. 

The  plaintiffs  continued  the  factors  of  Mrs.  Johnston,  and  advanced  money 
to  her  use  from  time  to  time,  which  she  refused  to  pay,  because  they  re- 
tained the  crop  of  1819,  or  passed  it  to  the  account  of  A  S.  Johnston, 
while  she  contended  it  sliould  be  passed  to  her  account. 

The  bill  was  filed  on  the  4th  December,  1823,  against  Mrs.  Johnston 
and  the  trustees,  to  charge  the  trust  estate  witli  the  plaintiff's  demands ; 
and  afterwards  Mrs  Johnston  and  the  trustees,  by  permission  of  the 
Court  of  Chancery,  sold  all  the  settled  estate.  The  interest  of  the  money 
arising  from  the  sale  gave  the  family  an  easy  income.  Mrs.  Johnston 
did  not  receive  or  spend  the  amount  of  her  interest  and  annunity,  which 
continued  in  the  hands  of  the  trustees — she  died  on  the  27th  March, 


*230]  CHARLESTON,  APRIL,  1833.  159 

1828  ;  and  the  bill  was  revived  against  her  administrator  and  the  trustees. 
The  matters  involved  in  the  case  were  referred  to  the  Commissioner,  who 
reports,  among  other  things,  that  the  whole  of  the  trust  property  has  been 
sold,  as  before  stated,  except  the  Rosalind  plantation,  and  a  few  old  and 
useless  slaves  ;  and  he  recommends  that  the  plaintiffs  should  be  satisfied 
their  demands,  first  by  a  sale  of  the  Rosalind  estate,  and  the  residue  out 
of  the  interest  which  has  accrued  on  Gen.  Can's  bond,  who  was  the  pur- 
chaser of  the  trust  property. 

The  cause  was  heard  at  Charleston,  January  Term,  1829,  and  the  fol- 
lowing decree  delivered  by. 

Harper,  Chancellor.     The  case  of  Ewing  v.  Smith,  3  Eq.  Rep.  147, 
which  is  very  much  the  present  in  many  of  its  circumstances,  has  settled, 
tha.t  0,  feme  covert  cannot  dispose  of,  or  in  any  manner*  charge  her  r:);nqi 
separate  estate — not  even  with  the  consent  of  her  trustee.     If  L 
issue  or  profits  are  to  be  paid  to  her  separate  use,  she  may_  do  what  she 
pleases  with  them  when  she  receives  them,  but  cannot  dispose  of  them  by 
anticipation.     The  Court,  however,  as  has  been  decided  in  several  cases, 
will  charge  her  separate  estate,  if  the  debt  has  been  contracted  for  its 
benefit.  In  a  late  case,  that  of  Street  t'.  Theus,  which  I  decided  at  Sumter, 
I  had  occasioned  to  consider  the  doctrine  of  the  liability  of  trust  estates, 
for  debts  contracted  for  their  benefit;  and  to  refer  to  some  of  the  rules  which 
I  supposed  would  govern  the  Court,  in  the  application  of  that  doctrine.    In 
that  case,  I  observed,  "  that  although  it  was  perfectly  well  settled  that  a 
trust  estate  was  liable  for  debts  contracted  for  its  benefit,  it  has  not  been 
settled  that  one  trust  estate  is  liable  for  the  debts  of  another  ;  or  that  the 
remainder-man  is  to  pay  the  debts  which  were  contracted  for  the  exclu- 
sive benefit  of  the  tenant  for  life."     The  word  '  estate'  has  sometimes 
been  used  ambiguously.     There  may  be  various  estates  in  the  same  pro- 
perty, and  one  of  these  is  no  more  liable  for  the  debts  of  another,  than  if 
they  were  estates  of  different  property.     True,  where  property  is  conveyed 
in  trust,  and  particular  estates  are  created,  there  may  be  debts  chargeable 
on  the  whole  estate — the  particular  estates  as  well  as  the  remainder,  and 
to    which  all  shall   contribute  rateably.     As  where,  at  the  creation  of 
the  trust,  the  estate  is  charged  with  a  debt  which  falls  due  during  the 
contii)uance  of  a  particular  estate  ;  or  perhaps,  during  the  continuance  of 
a  particular  estate  a  debt  may  be  created  which  shall  properly  be  charge- 
able on  the  whole,  being  contracted  for  the  benefit  of  the  whole — such 
may  be  debts  contracted  for  repairs  and  improvements.     On  the  other 
hand,  it  cannot  be  doubted  there  may  be  debts  of  the  particular  estate, 
for  which  subsequent  estates,  or  the  remainder,  will  not  be  liable — such 
as  the  well  known  instance  of  interest  accruing  during  the  continuance  of 
a  life  estate,  which  the  tenant  for  life  is  bound  to  keep  down._   The  accru- 
ing interest  is  continually  due,  and  is  a  charge  on  the  particular  estate. 
So  in  the  case  of  a  trust  estate,  all  the  charges  of  management*  p232 
are  the  debts  of  the  particular  estate  ;  taxes,  current  and  necessary 
repairs,  the  support  of  slaves,  if  they  form  part  of  the  estate  ;  so  all  debts, 
chargeable  on  the  estate,  which  were  contracted  for  the  individual  benefit 
of  the  tenant  for  life    In  the  case  of  a  legal  estate  no  one  would  think  of  the 
remainder  being  liable  for  the  debts  of  the  tenant  for  life.     These  must 
be  paid,  not  out  of  the  corpus  of  the  property,  but  out  of  the  profits  ac- 


160  SOUTH   CAROLINA   EQUITY   REPORTS.  [*232 

cruing  during  the  continuance  of  the  estate  of  life.  The  particular  estate 
is  liable  to  be  sold,  not  any  part  of  the  capital.  The  equity  on  which  a 
creditor  comes  into  this  Court  to  render  a  trust  estate  liable  to  the  payment 
of  his  debt,  in  this,  that  he  has  advanced  his  money,  or  given  credit  to 
effect  the  objects  of  the  trust,  and  having  accomplished  the  objects  of  the 
trust  at  his  own  expense,  he  has  a  right  to  be  put  in  the  place  of  the 
cestui  que  trust,  or  to  be  reimbursed  out  of  the  trust  fund.  If  there  were 
a  trust  to  keep  a  hos})ital  in  repair,  he  who  has  made  the  repairs  at  his 
own  expense,  might  have  his  equity  to  be  reimbursed  out  of  the  trust  fund. 
So,  if  the  trusts  were  to  pay  rents  and  profits  for  the  separate  maintenance 
of  a  feme  covert,  he  who  had  advanced  his  money  for  her  separate  main- 
tenance, might  have  such  an  equity.  But  every  estate  must  bear  its  own 
burthen,  or  instead  of  effecting  the  objects  of  the  trust,  they  will  be  de- 
feated. The  case  of  Street  v.  Theus,  to  which  I  have  alluded,  was  one 
in  which  the  property  was  settled  to  the  joint  use  of  the  husband  and 
wife  during  coverture — on  the  death  of  the  husband,  to  the  wife  for  life, 
remainder  oh  her  death  to  the  children  of  the  marriage.  The  bill  was 
filed  after  tlie  death  of  the  husband,  to  ol)tain  payment  out  of  the  trusts 
estate,  of  an  account  for  articles  furnished,  and  advances  made  to  the 
husband  for  the  support  of  himself  and  family.  Here  the  objects  of  the 
trust,  were  that  during  the  continuance  of  the  joint  estate,  the  issues  and 
profits  should  go  to  the  joint  issue.  The  advances  were  made  by  the 
creditor  to  the  joint  use,  and  I  thought  he  could  look  only  to  the  joint 
estate  for  satisfaction — that  is  to  say,  to  the  rents  and  profits  which  ac- 
crued during  the  coverture.  The  further  objects  were  to  secure  the  estate 
^QoQ-i  to  the  individual  use  *of  the  wife  after  the  husband's  death,  and  to 
'  -^  her  children  after  her  death. 

If  by  making  advances  to  the  husband  for  the  use  of  himself  and  family, 
the  wife's  separate  life  estate  or  the  capital  of  the  property  might  be 
rendered  liable,  it  is  i)lain  that  it  would  be  in  the  power  of  the  husband 
and  a  creditor  to  defeat  the  ulterior  objects  of  the  trust  altogether.  It 
would  be  vain  to  say  that  the  wife  shall  not  anticipate  the  income  of  her 
separate  property,  if  the  husband  may  by  exceeding  his  income  thus 
anticipate  it,  even  before  it  vests  in  possession.  It  is  to  be  observed 
that  in  such  cases  of  marriage  settlement,  the  husband,  the  wife  and  the 
children,  are  purchasers  of  their  several  estates  for  valuable  consideration. 

I  do  not  think  the  cases  decided  in  this  State  inconsistent  with  the 
view  I  have  taken.  In  Cater  v.  Eveleigh,  4  Eq.  Rep.,  19,  a  cotton  saw 
gin  was  bought  for  the  use  of  the  wife's  separate  estate — it  is  not  stated 
whether  she  was  tenant  for  life,  or  in  fee.  If  only  tenant  for  life,  the 
saw  gin  may  have  been  considei'ed  a  permanent  improvement,  properly 
chargeable  on  the  whole  estate.  —  The  order  is  general  for  payment  out 
of  the  estate.  I  suppose  if  it  were  an  estate  for  life,  the  effect  of  the 
order  was  to  make  it  payable  out  of  the  profits  of  the  life  estate.  In 
James  v.  Mayrant,  4  Eq.  Rep.  591,  the  order  was  express,  to  pay  out  of 
the  accruing  profits  during  the  continuance  of  the  life  estate.  In  Mont- 
gomery &  Eveleigh,  1  M'C.  Ch.  257,  there  was  an  estate  for  life,  and 
the  debt  was  contracted  for  the  support  of  the  slaves,  constituting 
according  to  ray  view  only  a  charge  on  the  life  estate.  The  order  is 
general  to  pay  out  of  the  life  estate.  The  point  does  not  seem  to  have 
been  brought  before  the  Court,  of  a  distinction  between  the  liability  of 


*233]  CHARLESTON,    APRIL,    1833.  161 

the  particular  estate  and  the  remainder.  But  I  suppose  the  effect  of  the 
order  was  to  make  the  debt  payable  out  the  rents  and  profits  of  the  life 
estate. 

The  bill  in  the  present  case  is  filed,  as  it  is  said,  to  obtain  payment  out 
of  the  trust  estate,  on  the  ground  that  the  debt  was  contracted  for  its 
benefit.     But  it  is  to  be  observed  in  the  first  place,  that  here  are  two 
general  trust  estates,  though  both  are  created  by  the  same  settlement  and 
vested  in   the  same    trustees,  out  of  each    of  which  various  particular 
estates  have  been  carved  for  different  purposes,  and  subject  *to  r^oqi 
distinct  liabilities.     It  is  true,  that  as  I  understand  the  report  of  L  •" 
the   Commissioner,  the  whole  of  both  estates  has  been  sold  (except  one 
plantation)  and  the  proceeds  vested  in  a  single  fund.     But  the  Court 
must  dispose  of  the  proceeds  of  each  according  to  the  trusts  of  the  original 
settlement.      There   is   first,  the  property  which  was   Mrs.    Johnston's 
before  her  marriage,  her  share  of  her  father's  estate.     In  this  the  settle- 
ment gives  her  a  life  estate,  (to  her  separate  use  during  coverture)  with 
remainder  to  her  children.     Is  this  property  or  her  life  estate  in  it,  which 
still  subsists,  liable  to  the  complainant's  demand,  or  any,  and  which  of 
them  ?     The  comphxinants  must  claim  on  the  ground  that  their  debt  was 
contracted  for  the  purpose  of  effecting  the  objects  of  the  trust.     What 
were  the  objects  of  tlie  trust  ?     That  she  should  receive  the  issues  and 
profits  to  her  separate  use  during  the  coverture — to  her  own  use  for  life 
after  the  determination  of  the  coverture  by  the  death  of  the  husband,  and 
that   the  property  should  go  to  her  children  at  her  death.     Have  the 
complainants  advanced  their  money  for  these  purposes.     It  is  on  this 
part  of  the  case  that  I  feel  the  principal  and  only  difficulty.     The  com- 
plainants' first  demand  is  for  the  money  raised  on  the  note  indorsed  by 
them,  which  they  charge  was  expended  by  Mr.  Johnston  for  the  con- 
venience and  in  the  support  and  education  of  his  family.     This  is  said  to 
have  been  the  expending  of  money  for  the  benefit  of  the  trust  estate.     To 
expend   money  for  the  benefit  of  a  trust  estate,  would  seem  to  mean, 
either  adding  value  to  the  estate,  or  the  defraying  of  charges  to  which 
the  trust  estate  would  be  liable.     But  was  the  wife's  i^^eparate  trust  estate 
liable  for  the  expenses  of  herself  and  family  ?     In  general  such  an  estate 
is  not.      A  feme  covert  who  has   an  estate  to  her  own  separate  use, 
may  do  what  she  pleases  with  the  income  of  it.     She  is  not  bound  to 
support  herself  with  it,  still  less  her  children. — She  may  suffer  it  to  accu- 
mulate, and  still  demand  a  support  from  her  husband. — A  husband  if  he 
be  of  ability,  is  bound  to  support  his  wife  and  family,  though  they  may 
have  property  of  their  own.     But  there  may  be  cases  where  the  husband  is 
not  of  ability.   He  may  be  embarrassed,  or  without  property,  and  the  wife 
may  be  compelled  to  support  herself  out  of  her  separate  *estate.   r*235 
And  she  might  be  subjected  to  the  greatest  distress,  if  she  could 
not  obtain  the  means  of  support  on  the  credit  of  her  separate  estate. 
The    Court   has    ordered  children   to   be  maintained  out  of  their   own 
property,  when  the  father  was  not  able  to  support  them.     The  idea  seems 
to  be,  that  if  articles  are  furnished,  or  money  advanced  to  the  husband, 
and  employed  by  him  in  the  support  of  his  family,  and  he  afterwards 
turns  out  insolvent,  it  is  sufficient  evidence  that  he  was  not  of  al)ility  to 
support  them,  and  the  creditors  have  an  equity  to  charge  their  account 
on  the  wife's  or  children's  estate.     It  seems  fair,  that  they  who  have  re- 

VOL.   I.— 11 


162  SOUTH    CAROLINA   EQUITY    REPORTS.  [*235 

ceived  the  benefit  of  the  creditor's  advances,  should  satisfy  him  out  of 
their  owu  property.  There  seem  to  be  several  difficulties  in  the  way  of 
establishing  such  a  doctrine.  The  husband,  the  wife  and  the  children, 
have  all  received  their  share  of  the  benefit  from  money  laid  out  in  family 
expenses,  and  if  they  have  distinct  property,  it  should  seem  that  they 
ought  to  contribute  in  proportion  to  the  benefit  received.  But  there 
would  be  great  difficulty  in  apportioning  the  contribution  among  them. 
The  wife  and  children  are  not  bound  to  support  the  husband  and  father, 
though  they  may  be  obliged  to  support  themselves.  If  all  accounts 
raised  by  the  husband  for  the  support  of  his  family,  are  to  be  charged 
on  the  separate  property  of  the  wife  and  children  when  he  proves  unable 
to  pay,  it  would  always  be  in  his  power  to  squander  his  own  property 
and  contrive  to  charge  his  family  expenses  on  the  estates  of  the  wife  and 
children,  thus  defeating  the  object  for  which  the  trust  was  created.  The 
husband  ought  to  support  his  family  in  a  manner  suited  to  his  income. 
If  the  wife's  separate  fortune  will  afi'ord  a  more  expensive  way  of  living, 
and  she  is  minded  so  to  apply  it,  there  is  nothing  to  forbid  her  doing 
so.  But  he  should  not  incur  expenses  in  reference  to  what  her  fortune 
will  afford.  He  will,  however,  be  continually  tempted  to  do  so,  if  we 
allow  accounts  raised  by  him  to  be  charged  on  the  wife's  separate  estate. 
But  the  principal  difficulty  in  the  way  of  the  doctrine  is,  that  there  is  not, 
so  far  as  I  can  discover,  any  law  or  authority  for  it.  There  would  be  no 
difficulty  in  such  a  case  in  England.  If  the  credit  were  given  to  the 
^gop-n  husband  he  alone  would  be  answerable,  *though  he  might  have 
-'  applied  the  money  to  the  support  of  his  family.  If  the  wife  should 
afterwards  think  fit  to  charge  the  debt  on  her  separate  estate,  she  might 
do  so.  So  the  wife  there  may  raise  any  amount,  or  contract  any  debt  on 
the  credit  of  her  separate  estate,  and  the  estate  Avill  .be  liable  for  them. 

How  far  have  our  Courts  departed  from  the  English  doctrines  ?  Thus 
far,  that  the  wife  should  not  by  her  own  act  merely,  charge  her  separate 
estate.  The  Court  will  look  into  the  necessity  and  i)ropriety  of  the 
charge.  If  she  is  under  the  necessity  of  supporting  herself  and  family 
on  the  credit  of  the  separate  estate,  she  may  do  so,  as  in  England.  But 
the  Court,  before  making  her  estate  liable,  will  look  into  the  circum- 
stances of  the  husband,  and  be  satisfied  that  the  necessity  existed,  and 
that  the  goods  furnished  or  money  advanced,  was  proper  in  her  circum- 
stances. But  still  it  must  appear  that  the  credit  was  given  to  the  wife, 
and  not  to  the  husband. 

The  decisions  of  our  Courts  which  take  away  from  the  wife  the  power 
of  charging  her  estate  by  her  own  mere  act,  do  not  give  the  husband  the 
power  of  charging  it,  even  for  things  the  most  necessary  and  proper. 
The  wife  must  be  trusted,  and  on  the  faith  of  her  own  separate  property. 
In  case  of  a  trust  to  pay  rents  and  profits  to  the  separate  use  of  a  feme 
covert,  they  must  be  paid  to  her  own  order,  or  into  her  own  hand. 
So,  with  respect  to  such  an  account,  I  should  say,  the  goods  must  be 
furnished,  or  the  money  paid,  to  her  own  order  or  into  her  own  hand. 
The  husband  may  perhaps  be  her  agent  in  raising  the  account,  (though 
I  should  doubt  the  propriety  of  his  acting  as  such)  but  then  it  should 
distinctly  appear  that  he  acted  in  the  character  of  agent.  In  short, 
the  dealings  should  appear  to  have  been  bona  fide  with  the  wife, 
and   not  with   the  husband.     I   can  perceive   nothing  in  the  case,    but 


*236]  CHARLESTON,    APRIL,    1833.  163 

that  the  credit  was  given  to  the  husband,  though  it  was  attempted  after- 
wards to  obtain  the  additional  security  of  the  wife's  separate  estate. 
The  money,  so  far  as  appears,  was  not  paid  to  him  for  the  particular 
purpose  of  supporting  his  family,  but  for  any  purpose  to  which  he  might 
think  proper  *to  apply  it.  The  proof  is  very  imperfect  of  his  r^c)o>^ 
having  applied  it  to  the  support  of  his  family — at  most  it  applies  L  "' 
to  but  a  part  of  the  money.  The  carriage  and  horses  form  the  most  con- 
siderable item.  On  this  I  may  observe,  that  if  the  husband  thought 
proper  to  buy  a  carriage  and  horses  for  the  convenience  of  himself  and 
family,  I  do  not  perceive  on  what  principle  the  wife's  separate  estate  can 
be  charged  with  them.  If,  by  her  direction,  he  bought  them  for  her 
separate  use,  and  they  are  now  her  individual  property,  perhaps  she  may 
be  chargeable.  If  he  purchased  for  himself,  they  remained  his  property, 
and  she  is  chargeable  with  them  as  administratrix.  The  parties  may 
have  this  point  referred  if  they  think  proper.  I  cannot  think  either  the 
wife's  life  estate  in  this  property,  or  the  children's  remainder,  liable  to 
satisfy  the  complainants  for  the  amount  paid  by  them  on  the  indorsement. 

The  complainants'  next  demand  is  on  an  account  raised  against  Mr. 
Johnston,  in  his  lifetime,  principally  for  corn  and  other  plantation  sup- 
plies ;  cash  advanced  for  payment  of  taxes  ;  cash  on  account,  for 
renewal  of  note,  &c.  So  far  as  the  supplies  were  for  the  use  of  Mrs. 
Johnston's  separate  estate,  corn  for  the  support  of  her  separate  slaves, 
or  taxes  paid  for  her  separate  property,  I  think  her  life  estate,  (not  the 
children's  remainder)  is  liable  to  satisfy  the  account.  The  report  does 
not  distinguish  what  was  furnished  for  the  separate  estate,  and  what  for 
the  husband's. — This  may  be  a  subject  of  further  reference. 

The  complainant's  next  demand  is  for  an  account  against  Mrs.  John- 
ston, since  her  husband's  death,  to  the  amount  of  $2,139  12,  on  which  is 
credited  $1,191,  for  produce  sold  chiefly  in  1821.  Mrs.  Johnston  admits 
this  account  in  her  answer,  to  the  amount  of  $1,364  64,  but  states  that 
this  only  exceeded  the  amount  of  the  crop  of  1819,  sent  by  her  to  the 
complainants,  by  about  $163;  and  that  she  afterwards  sent  them  pro- 
duce more  than  enough  to  pay  the  balance.  The  report  is  not  very 
specific  as  to  the  amount  of  this  account  proved,  or  the  payment  on  it. 
I  suppose  the  question  of  its  being  paid  depends  on  that  of  the  com- 
plainants' right  to  apply  the  proceeds  of  the  crop  of  1819  to  the  account 
*of  A.  S.  Johnston.  It  is  clear  that  they  had  no  such  right.  If  r:!:233 
the  crop  was  entirely  the  property  of  the  estate  of  A.  &.  John-  '-  '^^  ^ 
ston,  they  had  no  right  to  retain  it  as  preferred  creditors.  The  adminis- 
tratrix was  entitled  to  it,  that  she  might  distribute  it  in  a  course  of 
administration. — She  may  be  liable  for  the  amount,  as  administratrix,  to 
the  creditors  of  her  husband,  but  as  between  her  and  the  complainants, 
her  factors,  it  was  a  mere  personal  transaction.  As  to  the  claim  set  up 
by  Mrs.  Johnston,  to  a  portion  of  this  crop,  it  is  perhaps  not  necessary 
now  to  decide. — That  question  will  arise  when  she  is  called  to  account 
for  her  administration.  I  am  inclined  to  think,  that  if  she  and  her 
trustee  permitted  her  husband  to  use  the  services  of  the  slaves  on  his  own 
plantation,  (I  understand  the  crops  were  made  on  the  Rosalind  planta- 
tion) without  any  agreement  as  to  apportioning  the  crop,  that  the  crop 
was  his,  and  that  she  cannot,  at  all  events,  be  considered  as  any  thmg 
more  than  a  creditor,  for  the  hire  of  the  slaves.— On  this  pomt,  however, 


164  SOUTH   CAROLINA    EQUITY   REPORTS.  [*238 

I  do  not  conclncle  any  thing.  In  the  account  against  Mrs.  Johnston, 
there  are  charges  for  money,  said  to  be  advanced  specifically  for  the 
maintenance  and  education  of  the  children,  and  so  applied  by  her.  If 
that  account  is  paid,  it  is  not  perhaps  necessary  to  notice  this  charge 
particularly.  I  may  observe,  however,  that  Mrs.  Johnston  is  personally 
liable,  and  all  her  property  is  liable  for  any  debt  contracted  by  her,  or 
money  advanced  to  her,  since  her  husband's  death.  If  money  was 
advanced  to  her  for  the  support  and  education  of  her  children,  and 
properly  applied,  and  the  creditor  should  be  unable  to  obtain  payment 
of  her,  there  is  an  estate  expressly  charged  with  the  maintenance  and 
education  of  the  children,  from  which  the  creditor  may  be  reimbursed. 
I  could  not,  however,  it  seems  to  me,  make  the  order  in  this  case,  to 
which  the  children  are  not  parties  I  think  the  creditor  might  apply  by 
petition. 

As  to  the  property  which  was  A.  S  Johnston's  before  his  marriage, 
he  had  a  life  estate  in  that  which  was  subject  to  all  his  debts.  His  life 
estate  has  now  passed  way,  and  the  remainder  has  vested  in  the  children, 
*9Qql  subject  to  a  life  annuity  to  their  mother.  They  are  *all  pur- 
^  -'  chasers  for  valuable  consideration.  From  the  view  which  I  have 
taken,  it  will  appear,  that  I  do  not  think  this  remainder  chargeable  with 
the  personal  debts  of  A.  S.  Johnston,  or  those  contracted  by  him  for  the 
support  of  his  family,  or  those  contracted  for  the  benefit  and  support  of 
his  life  estate — in  short,  for  any  of  the  complainants'  demands. 

It  is  ordered  and  decreed,  that  the  case  be  again  referred  to  the  Com- 
missioner, to  report  on  the  matters  specified  in  the  foregoing  opinion,  as 
matters  of  reference.  And  that  as  to  the  residue  of  the  complainants' 
charges,  the  bill  be  dismissed. 

Mr.  Gray,  (the  Commissioner,)  to  whom  the  cause  was  referred,  by  his 
report  in  January,  1833,  found  that  the  bond  and  note  were  given  as 
herein  before  mentioned  ;  and  the  money  expended  by  Mr.  Johnston,  as 
already  mentioned,  and  disallowed  the  complainants'  claim  to  be  reim- 
bursed either  for  the  amount  paid  on  Mr.  Johnston's  note,  or  the  sums 
advanced  by  them  to  Mr.  Johnston  for  the  maintenance  of  the  plantation 
and  family.  The  report  finds  further  the  assets  of  Mrs.  Johnston  in  the 
hands  of  the  trustee,  amounting  to  $3,965  55. 

At  January  Term,  1833,  the  cause  came  before  his  Honor,  Chancellor 
Johnston,  upon  the  report  exceptions  and  equity  reserved,  who  ruled, 
that  the  decree  precluded  every  question,  except  as  to  the  fact  whether 
the  carriage  was  bought  for  Mrs.  Johnston,  and  the  supplies  furnished  on 
her  credit;  and  overruled  the  exceptions,  without  making  any  further 
decree. 

The  plaintiffs  appeal,  and  move  to  reverse  the  same,  on  the  following 
grounds : 

1.  That  the  evidence  taken  in  the  case  places  it  beyond  doubt,  that 
Magwood  &  Patterson  indorsed  the  note  of  A.  S.  Johnston,  on  the 
credit  of  him  and  Mrs.  Johnston,  jointly  ;  that  the  money  was  applied  to 
their  joint  use,  and  that  Mrs.  Johnston  was  consenting  to  the  application 
of  the  money,  as  well  as  to  the  loan.  And  therefore,  that  this  case  comes 
within  the  principal  of  a  loan,  obtained  by  a  married  woman,  upon  the 
credit  of  her  separate  estate,  and  applied  by  her  to  her  own  use. 


*240]  CHARLESTON,  APRIL,  1833.  165 

*2.   That  the  loan  was  necessary  and   proper,  in   the  circum-  r- ,..-, 
stances  in  which  Mr.  Johnston  was  placed  ;  that  the  plaintiffs  are  ^  ~ 
humane  and  meritorious  creditors  of  the  wife  as  well  as  of  the  husband, 
and  are  entitled  to  the  benefit  of  Mrs.  Johnston's  engagement  to  them, 
because  that  engagement  was  such  as,  in  conscience  and  in  equity,  should 
be  complied  with. 

3.  That  as  Mr.  and  Mrs.  Johnston  were  equally  interested  in  the  loan, 
their  joint  liability  was  a  fair  and  equal  arrangement  of  which  the  plain- 
tiffs should  have  the  benefit ;  but,  at  all  events,  if  Mrs.  Johnston's  estate 
be  not  liable  for  the  whole,  it  should  be  liable  for  a  proportionable 
part. 

4.  That  the  advances  made  by  Magwood  &  Patterson,  after  February, 
1818,  should  be  borne  by  Mrs.  Johnston's  estate  in  like  manner,  as  having 
been  made  upon  the  same  understanding,  that  they  were  for  the  joint 
benefit  of  the  husband  and  wife,  and  that  they  were  jointly  liable. 

All  which  positions,  as  the  plaintiffs  contend,  are  consistent  with  Chan- 
cellor Harper's  decree,  and  with  the  law  of  this  Court.  But  if  the 
Court  be  of  opinion  that  the  said  decree  is  opposed  to  the  relief  which 
the  plaintiffs  seek,  they  appeal  from  so  much  of  the  said  decree. 

Pettigru,  for  the  appellants,  cited  Jacques  u.  The  Methodist  Church, 
1  John.  Ch.  Rep.  150;  17  John.  Rep.  458;  Ewing  v.  Smith,  3  Eq. 
Rep.  417. 

Earle,  J.  The  Chancellor  in  his  Circuit  decree  has  decided  the  gen- 
eral principles  of  this  case,  and  had  settled  the  most  important  questions 
which  arose  in  the  progress  of  it.  In  order  to  charge  the  separate  estate 
of  the  wife,  he  had  said,  that  the  goods  must  be  furnished,  or  the  money 
paid,  to  her  own  order  or  into  her  own  hands.  "And  although  the  hus- 
band might  perhaps  act  as  her  agent,  that  it  should  distinctly  appear  that 
he  acted  in  the  character  of  agent ;  and  that  the  dealings  should  appear 
to  have  been  bona  fide  with  the  wife,  and  not  with  the  husband." 

Under  this  general  principle,  the  Chancellor  expressly  decreed,*  r*24l 
that  neither  the  life  estate  of  the  wife,  nor  the  remainder  of  the  '- 
children,  was  liable  to  refund  the  amount  which  the  complainants  had 
paid  on  their  indorsement,  and  directed  it  to  be  referred  to  the  Commis- 
sioner to  inquire  whether  the  carriage  and  horses  were  bought  by  the 
direction  of  the  wife  for  her  separate  use,  and  were  retained  by  her  as 
her  individual  property.  The  Commissioner  reported  that  they  were  not 
so  purchased,  and  that  they  were  sold  after  Mr.  Johnston's  deatli,  as  part 
of  his  estate.  He  reports  expressly  that  the  credit,  in  relation  to  the 
money  raised  on  the  note  indorsed,  was  given  to  Mr.  Johnston  himself 
In  relation  to  the  advances,  made  by  complainants  io  Mr.  Johnston  of 
money  and  supplies,  provisions,  &c.,  for  the  plantation,  it  was  further 
referred  on  this  subject,  to  enquire  and  report,  whether  the  supplies  were 
for  the  use  of  Mrs.  Johnston's  separate  estate ;  the  corn  for  the  support 
of  her  separate  slaves,  or  taxes  paid  for  her  separate  property.  _  ihe 
Commissioner  reports,  that  no  evidence  has  been  furnished  by  which  it 
was  practicable  to  distinguish  what  was  on  account  of  the  one  estate,  and 
what  of  the  other. 

Another  question  raised,  related  to  the  supplies  furnished  Mrs.  John- 


166  SOUTH   CAROLINA   EQUITY   REPORTS.  [*241 

ston  by  the  complainants  after  the  death  of  her  husband,  in  September, 
1819,  on  which  account  they  claimed  a  large  balance.  This  question 
depended  on  the  right  of  the  complainants  to  apply  the  proceeds  of  the 
crop  of  1819,  to  the  extinguishment  of  their  demands  against  Mr.  John- 
ston. From  the  report  of  the  Commissioner,  it  appears  that  they  retained 
the  whole  of  that  crop,  amounting  to  $1,162  90,  which  they  had  no  right 
to  do,  according  to  the  decree.  The  Commissioner  therefore  reports  that 
sura  against  them  in  favor  of  the  estate. 

On  exceptions  to  the  report  it  w\as  confirmed,  and  the  Chancellor  was 
of  opinion  that  by  the  previous  decree  the  whole  bill  was  dismissed,  ex- 
cept the  subject  specially  referred  and  reported  on. 

This  Court  is  now  of  the  same  opinion,  and  the  order  of  confirmation 

*0/i9l  ^^  "°^  affirmed.     The   complainants   have  *appealed   from   the 

"^  "-•  original  decree,  and  this  Court  concurs  fully  in  the  views  which 

the  Chancellor  has  taken,  in  that  decree  ;  and  the  same  is  hereby  also 

afifirmed,  for  the  reasons  which  he  has  given. 

Johnson  and  O'^Neall,  Js.,  concurred. 


The  Executors  of  James  S.  Hopkins  vs.  Mary  Mazyck,  and  others. 

P.  R.  M.  a  young  man  of  intemperate  habits,  was  prevailed  on  to  execute  a  deed  of 
his  pi'operty  to  bis  mother  and  l)ruther  and  sisters,  reserving  a  life  estate  to  him- 
self, with  the  understanding  on  his  part,  and  promises  on  their's,  that  the  object 
was  to  protect  his  property,  and  not  to  deprive  him  of  the  right  to  control  and 
dispose  of  it  by  will  ;  but  the  deed  contained  no  power  of  revocation,  nor  was 
there  any  undue  influence  exercised  ;  P.  K.  M.  afterwards  made  a  will  by  which 
he  disposed  of  his  property,  and  died  :  Held,  that  the  deed  was  valid  and  irrevo- 
cable.[*242] 

The  decision  in  Lawrence  v.  Beaubien,  considered  and  adhered  to.  Distinction 
taken  between  ignorance  and  mistake  of  the  law ;  the  first  is  not  susceptible 
of  proof,  and  cannot  therefore  be  relieved ;  but  mistake  may  be  proved,  and  when 
proven  relief  will  be  afforded.  [*250] 

The  bill  states  that  Paul  Ravenal  Mazyck,  being  possessed  of  consid- 
erable property,  on  the  4th  of  October,  1816,  executed  a  deed  to  certain 
trustees,  whereby,  for  certain  good  causes  and  considerations,  he  conveyed 
his  whole  estate  in  trust  for  his  own  use,  during  life,  and  at  his  death  to 
his  mother,  brothers  and  sisters,  to  be  equally  divided  between  them. 
That  on  the  5th  November,  1816,  the  said  Paul  R  Mazyck,  by  his  last 
will  and  testament,  devised  and  bequeathed  his  whole  estate  to  his  sister 
Jane,  (now  Mrs.  Elfe,)  subject  to  a  legacy  of  $200,  to  his  brother  Benja- 
min ;  and  requests  his  mother  and  brothers  and  sisters  to  take  nothing 
under  the  deed,  which  he  declares  was  executed  at  their  instance,  and 
intended  solely  for  his  own  protection  ;  and  should  they  claim  under  it,  he 
enjoins  it  on  his  executor  to  institute  proceedings  to  set  it  aside  ;  and 
shortly  afterwards  died.  The  defendant,  George  Elfe,  has  lately  proved 
the  will,  and  undertaken  the  execution  thereof ;  and  claims  to  hold  the 
property  disposed  of  under  it.  That,  Margaret  Mazyck,  (one  of  the  sis- 
ters of  Paul  R.  Mazyck,)  in  contemplation  of  marriage  with  James  S. 


^242] 


CHARLESTON,    APRIL,    1833.  167 


Hopkins,  the  plaintiff's  intestate,  by  marriage  settlement  of  the  24th  Feb- 
ruary, 182t,  conveyed  her  whole  estate,  as  set  forth  in  a  schedule  annexed, 
to  trustees,  in  trust,  among  other  things,  *that  if  the  said  James 
S.  Hopkins  survived  her,  and  there  should  be  no  child  of  the  L  ^^^ 
marriage,  the  said  estate  should  become  the  absolute  property  of  her  said 
husband.  The  schedule  contained  the  following  words,  "  under  the  trust 
deed  of  Paul  R.  Mazyck,  one-sixth  of  all  his  estate,  real  and  personal, 
conveyed  in  trust  to  his  mother,  brothers  and  sisters,  should  the  deed  be 
adjudged  irrevocable."  The  marriage  took  effect — Mrs.  Hopkins  died, 
never  having  had  issue,  her  husband  surviving  became,  therefore,  entitled 
to  her  estate,  under  the  marriage  settlement. 

The  plaintiffs,  on  behalf  of  their  testator,  claim  the  benefit  of  the  deed 
executed  by  Paul  R.  Mazyck,  and  aver  that  although  it  was  voluntary, 
he  executed  it  in  the  exercise  of  his  best  judgment,  and  when  he  was  fully 
competent  to  do  so,  in  order  to  protect  himself  from  want,  and  to  secure 
the  property  after  his  death  to  his  relations. 

The  bill  prays  for  partition  of  the  property,  and  an  account  of  the 
rents  and  profits. 

The  only  question  at  this  time  made  in  the  case,  was  whether  the  deed 
cf  Paul  R.  Mazyck  was  absolute  and  irrevocable,  or  was  executed  under 
such  persuasion  and  undue  influence,  and  mistake  of  the  law,  as  to  render 
it  void. 

The  answer  of  Mrs.  Mary  Mazyck,  (the  mother,)  among  other  things, 
says,  that  the  said  deed  was  made  without  any  consideration  whatever ; 
but  she  cannot  say  that  it  was  not  made  by  over-persuasion,  and  the  exer- 
cise of  the  influence  of  his  family,  and  of  at  least  one  of  his  best  friends ; 
for  such  was  the  fact,  though  she  denies  that  it  was  an  undue  influence  in 
any  improper  sense  of  that  word.  The  only  object  of  herself  and  that 
friend,  (Dr.  Gough,  now  deceased,)  was  to  save  him  from  squandering 
his  property,  and  to  prevent  its  falling  into  the  hands  of  unprincipled 
creditors  who  might,  and  as  experience  had  shown  would,  draw  him  in  by 
his  dissipated  habits,  to  waste  it  all.  The  plan  originated  with  herself — 
to  secure  the  property  to  the  family  of  the  said  Paul,  viz.,  his  mother, 
sister  and  brothers,  was  the  principal  part  of  the  design.  The  said  Paul, 
being  then  a  resident  at  Byrd's  Hotel,  was  sent  for  to  her  house,  and  was 
brought  in  a  chair  with  considerable  difficulty,  and  after  much  persuasion ; 
that  after  he  came,  the  *object  of  his  being  sent  for  was  made  rt.244 
known  to  him,  and  it  was  then  distinctly  declared  to  him  that  the  •- 
sole  motive  was  to  save  him  and  his  property  from  the  arts  of  unjust  and 
unprincipled  creditors  ;  that  she  employed  all  the  influence  she  had  as  a 
mother  to  induce  him  to  sign  the  deed  ;  that  he  signed  it  with  manifest 
reluctance,  but  not  without  repeated  and  solemn  promises  from  herself 
and  others  present  that  the  deed  should  never  at  all  interfere  with  his 
control  of  the  property,  nor  with  his  disposition  of  the  same  by  will,  in 
any  way  that  he  might  please,  and  she  never  did  consider  herself  entitled 
at  all  to  claim  any  benefit  under  the  said  deed,  against  any  will  he  might 
have.  That  after  the  execution  of  the  deed,  he  lived  continually  till  bis 
death  at  her  plantation,  except  in  summer,  when  he  lived  at  her  house  in 
town,  and  became  a  much  less  dissipated,  though  not  entirely  a  sober 
man.  She  was  not  aware  of  the  existence,  and  still  less  of  the  contents, 
of  the  will  of  Paul  Raveual  Mazyck,  until  after  his  death. 


168  SOUTH  CAROLINA    EQUITY    REPORTS.  [*244 

Solomon  Legare,  the  surviving  trustee  under  the  deed,  by  his  answers, 
says,  that  he  had  been  for  several  years  the  intimate  ftnend  of  the  family, 
and  was  often  consulted  by  the  said  Mary  Mazyek  respecting  the  affairs 
of  herself  and  her  children ;  that  he  well  knew  the  said  Paul  R.  Mazyek 
from  his  childhood;  that  as  he  grew  up  he  acquired  habits  of  dissipation 
and  intemperance,  which  were  the  occasion  of  much  concern  and  anxiety 
to  his  mother,  and  his  family  and  friends  generally.  But  however  incon- 
siderate the  said  Paul  R.  Mazyek  may  have  been  at  periods  of  indulgence 
in  liquor,  yet  in  the  intervals  when  he  abstained  from  it,  his  mind  was 
clear  and  good,  and  he  was  as  competent  to  the  judicious  management  of 
his  affairs  as  men  in  general.  He  further  says,  that  some  short  time  pre- 
vious to  the  execution  of  the  deed  of  trust,  above  spoken  of,  he  was  sent 
for  to  see  the  said  Paul  R.  Mazyek,  who  was  suffering  under  a  severe  ill- 
ness produced  by  his  habits  of  intemperance.  That  on  his  becoming 
convalescent.  Dr.  Gough,  the  attending  physician,  a  disinterested  friend 
of  the  family,  advised  the  said  Paul  R.  Mazyek  to  make  some  conveyance 
of  his  property,  by  which  it  might  be  secured  from  any  future  acts  of 
improvidence  he  might  be  led  into.  That  the  said  Paul  R.  Mazyek 
*9A^1  ^PPi'O'^sd  of  such  *arrangement,  and  Dr.  Gough,  by  his  request, 
-■  and  in  compliance  with  the  general  opinion  and  wishes  of  his 
mother  and  family,  actually  drew  a  paper  of  similar  import  with  the  said 
deed,  which  was  signed  by  the  said  Paul  Ravenal  Mazyek;  but  that  he, 
the  said  Solomon  Legare,  on  examining  the  paper  so  prepared  by  Dr. 
Gough,  thought  it  informal  and  insufficient  for  the  purposes  which  it  pro- 
posed, and  advised  the  said  P.  R.  M.  to  employ  a  professional  gentleman 
to  draw  such  an  instrument  of  writing  as  would  carry  his  objects  fully 
into  effect.  And  the  said  Solomon  Legare  saith  that  it  was  at  the  sug- 
gestion, and  under  the  advice  so  given  by  him,  that  the  deed  aforesaid 
was  drawn  and  executed.  That  he  was  present  and  saw  the  deed  execu- 
ted, as  well  by  the  said  P.  R.  M.,  as  by  Mr.  Gadsden,  (the  other  trustee, 
since  deceased,)  and  at  the  same  time  executed  it  himself;  that  he  well 
remembered  that  it  was  said  at  the  time,  and  understood  among  the 
family,  that  if  the  said  P.  R.  M.  reformed  and  became  a  temperate  man, 
none  of  them  could  claim  under  the  deed  ;  but  he  did  not  understand  that 
this  was  a  condition  of  the  deed,  or  that  it  was  said  to  persuade  P.  R.  M. 
to  execute  it :  for,  in  fact,  the  said  Solomon  Legare  is  not  aware  of  any 
reluctance  on  the  part  of  the  said  P.  R.  M.  to  execute  the  deed,  and  the 
whole  understanding  appeared  to  be,  that  P.  R.  M.  was  in  the  mind  to 
make  such  a  deed,  and  was  more  willing  to  trust  his  mother,  brother  and 
sisters,  than  to  trust  himself.  And  he  further  says,  that  Mrs.  Mazyek, 
the  mother  of  the  said  P.  R.  M.,  and  the  family  generally,  approved  the 
execution  of  the  deed  in  question.  He  felt  assured  they  did  so  from  con- 
siderations of  regard  towards  the  said  P.  R.  M.,  aware  of  his  proneness 
to  drink,  and  his  consequent  liability  to  squander  his  property;  and  not 
with  any  view  to  benefit  themselves  ;  and  he  says,  as  far  as  the  circum- 
stances under  which  the  deed  was  made,  are  known  to  him,  he  can  confi- 
dently state  that  no  undue  influence  or  persuasion  whatever  was  made  use 
of,  by  any  one,  to  secure  its  execution  ;  but  that  it  was  the  voluntary, 
free  and  deliberate  act  of  the  said  P.  R.  M.,  at  a  period  when  he  had  for 
*'>4fi1  ^*^''^®  weeks  left  off  drinking,  *and  when  his  mind  was  as  strong 
-J  and  unclouded  as  it  ever  had  been.     He  further  says,  that  he  was 


*'246]  CHARLESTON,  APRIL,    1833.  169 

in  tlie  habit  of  frequently  visiting  P.  E,.  M.  after  the  execution  of  the 
said  deed,  up  to  the  time  of  his  death,  and  that  he  never  heard  him  ex- 
press the  slightest  regret  at  having  made  it,  or  any  wish  to  revoke  it ;  nor 
did  he  ever  have  any  intimation  of  the  kind  from  the  family,  until  very 
recently  ;  but  on  the  contrary,  always  regarded  the  said  deed  of  full  force, 
and  unrevoked.  That  he,  the  said  Solomon,  never  knew  nor  heard  of  the 
will  which  the  said  P.  R.  M.  afterwards  executed,  till  it  was  deposited  in 
the  Ordinary's  office,  by  a  gentleman,  now  deceased,  who,  this  defendant 
believes,  had  possession  of  it  without  even  the  knowledge  of  its  existence 
by  the  family.  That  not  many  weeks  after  the  executing  of  the  deed, 
and,  as  well  as  he  can  recollect,  about  the  period  of  the  date  of  the  said 
will,  the  said  P.  R.  M.  resumed  his  habits  of  intemperance,  which  became 
more  inveterate,  and  eventually  produced  his  death. 

The  answer  of  George  Elfe  and  Jane  his  wife,  sets  forth,  that  the  said 
deed  was  voluntary,  so  far  as  regards  a  consideration  for  the  same ;  and 
denies  that  it  was  irrevocable,  but,  on  the  contrary  avers,  that  it  was 
revocable,  and  was  so  understood  and  intended  to  be,  by  all  the  parties 
concerned  therein. 

Jane  Elfe,  for  herself,  separately  answering  to  the  actual  transactions 
preparatory  to,  accompanying,  and  subsequent  to  the  execution  of  the 
said  deed  of  the  4th.  October,  1816,  says  :  that  she  well  remembers  how 
anxious  and  distressed  her  mother  was,  at  the  habits  and  conduct  of  the 
said  Paul,  and  at  the  prospect  of  the  whole  of  his  property  being  squan- 
dered by  him,  as  the  Queen-street  lot  had  been.  That  under  these  cir- 
cumstances, the  said  Paul,  being  a  resident  and  constant  boarder  and 
lodger  at  Byrd's  Hotel,  was  sent  for,  to  his  said  mother's  house.  That 
he  was  accordingly  brought,  after  much  persuasion  and  difficulty.  That 
the  deed  had  been  previously  prepared  ;  nor  did  he  know  anything  about 
it  until  he  came  to  his  mother's.  That  he  was  then  informed  that  he  had 
been  sent  for  in  order  to  execute  that  instrument ;  on  which  he  became 
evidently*  distressed  and  embarrassed,  and  walked  about  the  r^2i^ 
room,  much  disturbed  in  mind.  That  he  expressed  great  unwil-  ^ 
lingness  to  sign  the  paper,  as  not  understanding  its  contents — and  he 
undertook  to  read  the  paper,  wiien  his  mother  and  the  said  Jane  Elfe, 
being  both  of  them  present,  expressly  assured  him  that  the  only  object  of 
the  deed  was  to  save  the  projierty  for  his  own  use  and  benefit,  from  the 
injustice  and  rapacity  of  fraudulent  creditors  taking  advantage  of  him  ;^ 
and  that  it  was  not,  in  any  manner,  intended  to  deprive  him  of  the  use  ot 
the  property,  or  of  a  control  over  it.  That  under  these  assurances  he 
became  calmer,  and  executed  the  deed — and  having  done  so,  asked  em- 
phatically whether  he  would  be  debarred  of  the  privilege  of  making  his 
will,  and  disposing  of  his  property  thereby.  Whereupon  he  was  assured 
by  his  mother  and  the  said  Jane  Elfe,  that  he  would  not ;  that  they  had 
already  told  him  so,  and  that  they  never  would  claim  anything  under  the 
deed.  That  these  declarations  satisfied  him,  and  he  left  the  house. 
After  the  execution  of  the  deed  he  lived  entirely  at  the  residence  of  his 
mother  on  Goose  Creek,  became  a  reformed  man,  lived  such  the  rest  of 
his  life,  and  died  at  his  mother's,  on  Goose  Creek,  between  three  and  four 
years  afterwards.  Said  Jane,  and  she  believed,  the  whole  family  likewise, 
were  totally  ignorant  of  the  kind  intentions  of  her  brother  towards  her, 
and  of  the  preference  he  had  given  her  as  the  sole  object  of  his  bounty, 


no  SOUTH   CAROLINA    EQUITY   REPORTS.  [*247 

for  she  most  certainly,  and  slie  believes  no  one  else  of  the  family  sus- 
pected, ranch  less  knew,  of  the  existence  of  any  will  of  the  said  Paul,  and 
still  less  had  they  any  idea  of  its  contents.  These  defendants,  therefore, 
from  the  foregoing  facts,  within  the  knowledge  of  one  of  them,  the  said 
Jane,  expressly  denying  that  the  said  Paul  was  not  induced  by  over- 
persuasion  and  undue  influence  to  execute  the  said  deed,  but  that,  on  the 
contrary,  he  was  induced  to  do  so  by  the  solicitations  and  influences 
already  set  forth  at  large  ;  they  accordingly  insist  on  said  will,  by  way  of 
plea,  in  their  answer,  in  bar  to  the  account  sought  for  by  the  plaintiff; 
but  should  the  same  be  overruled,  they  will  be  ready  to  account. 
*9isT  "^^'^  answers  of  the  trustees  under  the  marriage  settlement*  is 
-^  immaterial,  and  the  answers  of  the  other  defendants,  the  sisters  of 
Paul  R  Mazyck,  and  their  husbands,  insist  on  the  validity  of  the  deed — 
they  were  all  under  age  at  the  time  of  its  execution.  Benjamin  and 
Alexander,  the  brothers  of  Paul.,  are  dead,  and  Mrs.  Mazyck  adminis- 
tered on  the  estate  of  the  former. 

In  addition  to  the  above,  it  was  proved  that  the  marriage  settlement 
of  Mrs.  Hopkins  was  drawn  by  Arthur  O'Harra,  the  former  husband  of 
Mrs.  Elfe. 

The  examination  of  Mrs.  Mary  Mazyck  was  offered,  on  behalf  of  Mr. 
and  Mrs.  Elfe,  but  objected  to,  on  the  ground  that  she  was  interested,  and 
could  not  impeach  the  deed  to  which  she  was  a  party.  The  objections 
were  overruled. 

The  following  extract  from  the  schedule  annexed  to  the  marriage 
settlement  of  Mrs.  O'Harra,  now  Mrs.  Elfe,  was  proved.  "Under  the 
will  of  Paul  R.  Mazyck,  all  his  estate,  real  and  personal,  (subject  to  a 
legacy  of  $200  to  his  brother  Benjamin)  devised  and  bequeathed  by 
Paul  to  his  sister  Mary  Jane  Mazyck,  should  the  same  be  adjudged  a 
legal  and  valid  will.  If  not,  one-sixth  of  his  real  and  personal,  conveyed 
in  trust  for  his  mother,  brother  and  sisters,  should  the  deed  be  adjudged 
irrevocable."  Mrs.  Mazyck  testified  that  she  did  not  know  whether 
Mrs.  Hopkins  was  present  when  the  deed  was  executed  ;  but  she  after- 
wards told  her  of  what  had  passed,  and  more  than  once  expressed  her 
agreement  to  it.  Paul,  in  summer,  lived  in  town  with  the  family.  He 
often  said,  "  remember,  mother,  I  depend  on  you,  that  it  is  mine  and  I 
will  do  as  I  please  with  it;"  and  she  thinks  Mrs.  H.  must  have  been 
present  on  some  of  these  occasions.  It  was  no  secret  in  the  family — all 
looked  upon  it  as  his,  and  so  did  Mrs.  H.  After  Mrs.  Desil  grew  up, 
she  was  acquainted  with  the  particulars  of  the  execution  of  the  deed,  and 
never  objected ;  and  witness  had  no  reason  to  believe  she  was  not  present 
at  the  conversations  of  Paul,  above  mentioned. 

On  the  above  state  of  facts.  Chancellor  Johnston,  at  Charleston, 
January  term,  1833,  decided  that  the  deed  of  P.  R.  M.  of  4th  October, 
1816,  was  irrevocable,  as  it  declared  the  trust  property  was  to  be  sul)ject 
*s>4Q"i  ^0  none  other,  and  it  ^reserved  no  power  of  revocation — without 
■J  deciding  whether  parol  evidence  was  admissible  to  establish  stipu- 
lations not  contained  in  the  deed ;  the  Chancellor  held,  that  the  evidence 
contained  none  such.  That  no  such  stipulation  was  made  by  the  trus- 
tees ;  and  all  of  the  cestui  que  trusts,  except  Mrs.  Mazyck,  being  under 
age,  there  was  not  sufficient  proof  of  ratification  by  them  after  they  had 
attained  twenty-one.     That  Mr.  Hopkins  was  a  purchaser  for  valuable 


*249]  CHARLESTON,    APRIL,    1833.  171 

consideration,  to  wit,  marriage  ;  and  the  notice  to  him  in  the  schedule 
was  not  sufficient.  That  the  executor,  devisee  and  legatee  of  Paul,  are 
bound,  because  he  was,  and  they  cannot,  because  he  could  not,  aver  any 
other  trust  not  in  the  deed  ;  and  his  will  does  not  pretend  any  stipulation, 
but  merely  insists  on  the  motives.  The  Chancellor  also  decided,  that  the 
deed  had  not  been  executed  under  any  mistake  of  law,  as  contended  by 
Mr.  and  Mrs.  Elfe  ;  for  that  P.  R.  M.  had  good  ordinary  understanding, 
and  his  will  does  not  pretend  to  any  mistake,  nor  did  he  take  that  ground 
in  his  lifetime;  and  he  questioned  the  correctness  of  Lowndes  v.  Chisholra, 
and  Lawrence  v.  Beaubien,     The  decree  therefore  established  the  deed. 

An  appeal  was  taken  upon  the  grounds  following  : 

L  That  under  language  of  the  deed  of  P.  R.  M.  stating  it  to  have 
been  made  "for  divers  good  causes  and  considerations,"  and  also  for  one 
dollar,  the  evidence  of  his  motives  and  expectations  declared  at  the  time, 
was  admissible. 

2.  That  the  evidence  was  not  offered  to  alter  the  trusts  in  the  deed,  but 
to  establish  a  palpable  mistake  at  the  time  of  execution,  as  to  the  effect 
of  the  deed  in  controlling  the  power  of  disposing  of  the  property  by 
will — a  power  which  the  grantor  meant  to  reserve,  and  believed  he  had 
reserved. 

3.  That  the  assent  of  the  trustees  and  of  the  minor  cestui  que  trusts 
was  unnecessary,  because  the  deed  was  plainly  voluntary,  and  all  the 
grantees  and  cestui  que  tj^usts  were  volunteers  ;  and  as  the  grantor  was 
led  into  a  palpable  mistake  by  the  declarations  of  his  mother,  speaking 
for  all  concerned,  and  as  it  w^ere,  actually  contracting  with  him  *on  r:j;9cn 
behalf  of  all  others,  the  silence  of  the  trustees,  and  the  minority  of  '-  "^ 
the  other  cestui  que  trusts,  are  immaterial. 

4.  That  the  mistake  is  sufficiently  made  out  by  the  proofs  in  the  cause, 
to  entitle  Mr.  and  Mrs.  Elfe  to  relief  against  the  deed.  That  the  mistake 
was  such  a  mistake  in  law  as  is  relievable  in  a  Court  of  Chancery ;  and 
that  Lowndes  and  Chisholra,  and  Laurens  and  Beaubien,  are  unquestion- 
able law,  and  cover  the  whole  ground  under  controversy  here. 

5.  That  although  Mr.  Hopkins  was  a  purchaser  for  valuable  con- 
sideration, yet  he  had  notice  by  the  very  terms  of  the  schedule.  That 
the  will  of  P.  R.  M.  of  record  in  the  proper  office,  was  notice  to  him — 
and,  had  he  inquired  of  Mrs.  Mazyck,  or  of  Mr.  O'Harra  who  drew  his 
settlement,  he  would  have  found  what  was  meant  by  the  clause  ;  and  as 
he  chose  to  marry  with  notice  of  the  doubts  unexplained,  he  must  take 
the  consequence  thereof, 

6.  That  the  Chancellor  has  erred  in  saying  that  the  executor,  devisee 
and  legatee  of  P.  R.  M.  cannot  set  aside  the  deed,  because  he,  himself, 
if  alive,  could  not  do  it — whereas,  it  is  insisted,  that  if  P.  R.  M,  were 
himself  alive,  he  could,  on  the  existing  state  of  facts,  be  relieved,  on  a  bill 
filed  by  himself,  to  establish  the  mistake  in  law,  just  as  Beaubien  and 
Chisholm  were  relieved 

1.  That  the  deed,  therefore,  must  be  declared  null  and  void,  andthe 
will  established  ;  and  the  decree  for  account  _aud  settlement  modified 
accordingly, 

Grimke  and  Dunkin,  for  the  appellant. 

King  and  Pettigru,  contra. 


172  SOUTH   CAROLINA   EQUITY    REPORTS.  [*250 

Johnson,  J.  We  concur  with  the  Chaucellor,  that  the  trust  deed 
executed  by  Paul  Ravenal  Mazyck  is  good  and  must  stand,  and  therefore 
that  the  decree  of  the  Circuit  Court  should  be  affirmed  ;  and  that  would 
be  sufficient  for  the  case  itself,  but  the  observations  of  the  Chancellor  are 
calculated  to  shake  the  rule  in  Lawrence  v.  Beaubien,  2  Bail.  623,  and 
Lowndes  v.  Chisholra,  2  M'C.  Ch.  455,  and  the  Court  have  thought  it 
necessary  to  use  the  occasion  to  express  their  adherence  to  it. 

Lawrence  v.  Beaubien  was  decided  upon  much  consideration,  and 
the  more  I  have  reflected  upon  it  since,  the  more  I  am  confirmed  in  its 
^np.^  1  correctness ;  and  I  feel  persuaded  that  *all  doubts  about  it  pro- 
-'  ceeded  from  misapprehension  of  the  principle  on  which  it  is 
founded.  There  is,  as  I  understand  it,  a  very  obvious  distinction  be- 
tween ignorance  and  mistake  of  law.  Ignorance  cannot  be  proved — 
(who  can  enter  into  the  heart  of  man,  and  ascertain  how  much  knowledge 
dwells  there  ?)  and  for  that  reason  the  Courts  cannot  relieve  against  it. 
But  not  so  with  regard  to  a  mistake  in  law.  That  is  sometimes  sus- 
ceptible of  proof.  In  relation  to  the  general  rules  of  property  and  of 
common  honesty,  which  every  one  of  common  understanding  must  neces- 
sarily be  taught  by  their  intercourse  with  society;  as  that  we  have  no 
right  to  the  property  of  another — and  that  when,  as  in  this  case,  one  has 
parted  from  his  property  either  voluntarily  or  for  a  good  or  valuable 
consideration,  his  dominion  and  power  of  disposition  over  it  ceases ;  no 
one  will  obtain  credit  for  the  pretence  of  being  mistaken.  But  who  that 
has  had  any  experience  in  the  profession  of  the  law,  does  not  know  that  a 
whole  life  of  intense  application  is  insufficient  to  develop  all  its  mysteries, 
and  that  the  most  untiring  zeal  and  ardent  pursuit  must  leave  many  of 
the  secret  recesses  unexplored ;  and  shall  it  be  said  that  those  whose  pur- 
suits in  life  are  inconsistent  with  the  study  of  the  law,  shall  understand 
its  most  subtle  and  intricate  distinctions  by  intuition,  and  that  at  the 
price  of  their  fortunes  ?  I  trust  not — mistakes  as  to  matters  of  fact  have 
always  been  regarded  as  relievable  upon  clear,  full  and  irrefragable  proof, 
and  mistakes  in  law  ought  to  be  upon  the  same  footing,  when  the  proof 
is  equally  certain.  Suppose  a  party  claiming  the  benefit  of  a  contract 
founded  upon  a  mistake  of  law,  should,  when  put  to  answer  it,  admit  the 
fact  and  be  base  enough  to  insist  on  it.  Where  is  the  conscience  so 
seared  against  the  claims  of  justice  and  common  honesty,  as  not  to  revolt 
at  it  ?  Is  not  a  mistake  of  this  sort  as  susceptible  of  proof  as  a  mistake 
in  a  matter  of  fact.  Lawyers  are  the  professional  advisers  of  the  com- 
munity, they  are  looked  up  to  as  oracles  in  this  department,  and  when, 
as  in  Lawrence  v.  Beaubien,  their  client  is  misled  by  them  and  makes  a 
contract  against  his  interest,  what  higher  evidence  can  be  wanted  of  the 
fact  of  mistake  ?  Is  it  not  as  satisfactory  as  the  admission  of  the  party 
^QKC)-]  benefitted  by  the  contract  ?  *This  is  only  one  mode  of  proof,  and 
"'-'  I  doubt  not  that  there  are  others  which  would  be  equally  satis- 
factory. But  we  regard  the  question  as  definitely  settled,  and  have  only 
thought  it  necessary  to  say  this  much,  to  vindicate  it  from  the  doubts  in 
which  the  opinion  of  the  Chaucellor  was  calculated  to  involve  it. 

It  is  ordered  and  decreed,  that  the  appeal  be  dismissed,  and  that  the 
decree  of  the  Circuit  Court  be  affirmed. 

O'Neale,  J.,  concurred. 

Harper,  J.,  absent. 


'252]  CHAELESTOX,   APRIL,   1833.  173 


Thomas  E.  Screven  v.  William  Joyner,  Executor  of  Benjamin  S. 
Screven,  and  others. 

On  wliat  principles  nnd  under  what  circumstances  contribution  -will  be  allowed. — 
To  entitle  a  plaintiff  to  contribution,  he  must  show  that  his  payment  has 
removed  a  common  burthen  fruui  the  defendant  and  himself;  and  that  defendant 
has  received  benefit  from  such  payment.  [*2G0] 

The  testator  devised  a  tract  of  land  called  "Jasper's  Barony,"  to  his  sons,  Benja- 
min and  Thomas,  and  designated  the  portions  of  each  ;  a  large  amount  of  the 
purchase  money  being  unpaid,  the  vendor  filed  his  bill  against  the  executors,  and 
obtained  a  decree,  charging  the  land  with  its  payment ;  and  by  a  subsequent 
decree,  it  was  ordered  to  be  sold:  these  decrees  remained  open,  and  were  not 
enforced  for  many  years ;  meanwhile  the  devisee,  Benjamin  sold  his  portion  of 
the  Barony,  and  his  purchaser  took  and  held  possession,  until  he  acquired  a  title 
under  the  statute  of  limitation  ;  afterwards  the  former  decrees  were  revived,  and 
by  order  of  the  Court  of  Equity,  the  remaining  portion  of  the  Barony,  being  the 
share  of  Thomas,  was  sold  to  pay  the  purchase  money  ;  on  a  bill  filed  by  Thomas 
against  Benjamin,  for  contribution.  Held,  that  as  the  lien  of  the  vendor  under  the 
decrees  in  Equity,  was  lost  and  ended  by  the  statute  of  limitation,  the  payment  of 
the  decree  by  Thomas,  conferred  no  benefit  on  Benjamin,  and  consequently  he  was 
not  liable  to  contribution.  [*2G1] 

John  Screven,  who  died  in  tlie  year  1801,  by  his  last  will  and  testa- 
ment directed  that  a  large  body  of  land  containing  eight  thousand  acres, 
and  known  by  the  name  of  "  Jasper's  Barony,"  which  he  had  recently 
purchased  from  Joseph  Blake,  should  be  divided  by  a  certain  line, 
specified  in  the  will,  into  two  separate  tracts  ;  one  of  which,  called  the 
"  Upper  Plantation,"  containing  six  thousand  acres,  he  devised  to  his  son 
Thomas  E.  Screven,  the  present  plaintiff,  and  the  other,  called  the 
"  Lower  Plantation,"  containing  two  thousand  acres,  he  devised  to 
another  son,  Benjamin  S.  Screven,  the  testator  of  the  present  defendant 
William  Joyner.  The  testator  John  Screven  further  directed,  that,  as 
there  might  be  some  parts  of  each  of  these  plantations  conveniently 
situated,  which  might  be  disposed  of  without  injury  to  the  residue,  his 
executors  should  sell  such  parts,  or  as  much  thereof  as  might  be  neces- 
sary, and  apply  the  moneys  arising  therefrom  towards  payment  of  the 
purchase  money  of  the  Barony,  remaining  due  to  Blake. 

In  pursuance  of  these  directions,  the  executors,  within  a  *year  r>!c253 
or  two  after  the  death  of  the  testator,  sold  portions  of  both  the  •- 
"Upper"  and  the  "Lower  Plantations,"  and  applied  the  proceeds 
towards  the  payment  of  Blake's  debt:  and  the  devisees,  Thomas  PI 
Screven,  (by  his  guardian,  being  himself  at  that  time  a  minor,)  and 
Benjamin  S.  Screven,  went  into'possessiou  of  their  respective  portions 
of  the  residue. 

At  the  death  of  the  testator,  John  Screven,  a  large  amount  of  the  pur- 
chase money  of  the  Baronv  remained  due  to  Blake  ;  and  a  bill  being  hied 
by  hira  against  the  executors,  the  Court  of  Equity,  by  a  decretal  order  made 
in  1802,  directed  that  the  land  should  stand  mortgaged  for  the  payment. 
A  second  bill  was  filed  by  Blake,  to  revive  and  enforce  the  decretal  order 
of  1802,  and  the  Court,  by  a  decree  made  thereon  in  1806,  ordered 
the  land  to  be  sold  for  the  satisfaction  of  the  debt.  This  decree  was  not 
carried  into  effect,  but  various  payments  were  made  by  the  executors  up 


174  SOUTH   CAROLINA   EQUITY   REPORTS.  [*253 

to  the  year  1825,  at  which  time  there  remained  due  the  sura  of  $6,798  89, 
with  interest  thereon  from  2d  June,  1818,  and  Blake  filed  a  third  bill,  to 
revive  the  decree  of  1806,  and  to  obtain  a  sale  of  the  land  for  payment 
of  the  Ijalance  remaining  due.  To  this  bill  the  devisees  of  the  Barony 
were  made  parties,  and  by  a  decree  made  in  1827,  and  confirmed  by  the 
Court  of  Appeals,  the  whole  of  the  land  remaining  in  their  possession,  or 
in  the  possession  of  the  executors,  was  ordered  to  be  sold  in  conformity 
to  the  prayer  of  the  bill. 

The  only  portions  of  the  Barony  then  in  possession  of  either  the 
devisees  or  the  executors,  were,  a  plantation  called  "  Good  Hope,"  con- 
taining about  one  thousand  acres,  part  of  the  "Upper  Plantation," 
which  lemained  in  possession  of  the  devisee,  Thomas  E.  Screven,  and  a 
plantation  called  "Pilgrim's  Hope,"  containing  seven  hundred  and 
twenty-five  acres,  also  part  of  the  "  Upper  Plantation,"  which  was  then 
in  the  possession  of  Dr.  Richard  B.  Screven.  The  Court  of  Appeals 
refused  to  order  a  sale  of  any  other  portions  of  the  Barony  ;  but  as  it 
appeared  that  certain  persons  to  whom  portions  of  the  Barony  had  been 
sold,  were  in  possession  claiming  l)y  adverse  title,  it  was  ordered  that 
Blake  should  have  leave  to  amend,  or  file  a  supplemental  bill,  making 
^„r  .-,  such  persons  ^parties.  This  was  accordingly  done,  by  a  fourth 
-^  bill,  filed  in  1828,  against  several  person  who  had  i)urchased  parts 
of  the  "Upper  Plantation"  from  the  present  plaintiff,  Thomas  E. 
Screven.  In  this  last  mentioned  suit  a  decree  was  pronounced  by 
Chancellor  Harper,  in  1830,  confirming  the  titles  of  some  of  the  pur- 
chasers, and  directing  other  portions  of  the  land  held  by  them  to  be 
sold,  in  conformity  to  the  original  decree. 

In  the  meantime,  Thomas  E.  Screven,  in  1827,  filed  the  bill  which 
involves  the  subject  of  the  present  appeal.  This  bill  was  filed  against 
the  executors,  legatees  and  devisees  of  John  Screven,  to  obtain  an 
account  of  the  administration  of  his  estate,  and  to  have  the  assets,  if  any, 
applied  to  the  extinguishment  of  Blake's  debt,  in  ease  of  the  plaintiff's 
land,  and  to  compel  the  defendant,  William  Joyner,  executor  of  Benjamin 
S.  Screven,  who  was  then  deceased,  and  the  other  devisees  and  legatees 
of  John  Screven,  to  contri])ute  for  the  relief  of  the  plaintiff.  The 
matters  of  account  being  referred  to  the  Commissioner,  that  officer 
reported  that  a  balance  of  $23,497  72  was  due  by  Pvichard  B.  Screven, 
one  of  the  executors,  upon  his  administration  of  the  assets  which  had 
come  to  his  hands  ;  that  the  said  Richard  B.  Screven  was  also  liable,  in 
case  the  assets  were  insufficient,  to  refund  a  pecuniary  legacy  of  £1,000, 
which  he  had  received  payment  in  the  year  1803  ;  and  that  he  had  in  his 
possession  a  bond  of  John  Posey,  the  husband  of  one  of  the  female 
legatees,  the  condition  of  which  was  to  refund  a  legacy  to  his  wife,  of 
which  he  had  received  payment,  and  on  which  bond  there  remained  due 

a  balance  of  $ ;  all  of  which  sums,  the  Commissioner  reported,  as 

applicable  to  the  payment  of  the  debt  due  to  Blake,  prior  to,  and  in  ease 
of  any  and  every  part  of  the  Barony.  In  January,  1830,  the  case  came 
on  for  hearing  before  Chancellor  Harper,  upon  the  bill,  answers  and 
exceptions  to  the  report ;  and  a  decree  was  rendered,  in  which  amongst 
other  things,  the  report  of  the  Commissioner  was  confirmed,  and  the 
executor,  Richard  B.  Screven,  ordered  to  pay  over  the  balance  due  by 
him,  or  so  much  thereof  as  might  be  necessary,  and  to  refund  this  legacy 


*of; 


25 4J  CHARLESTON,   APRIL,   1833.  175 

of  £1,000,  if  requisite,  for  the  purpose  of  extinguishing  Blake's  debt, 
*ancl  exonerating  the  plaintiff's  land  ;  and  Posey's  bond  was  di-  r^of-r 
rected  to  be  assigned  and  delivered  to  the  plaintiff,  for  the  same  ^ 
purpose 

In  relation  to  the  liability  of  the  estate  of  Benjamin  S.  Screven  to 
contribute  for  the  relief  of  the  plaintiff,  the  decree  is  as  follows  :  "With 
respect  to  the  claim  against  the  estate  of  Benjamin  S.  Screven  for  con- 
tribution, the  case  was  very  imperfectly  made  out.  The  claim  is  only  in 
respect  of  the  portion  of  Jasper's  Barony  received  by  him.  There  is  no 
claim  against  him  as  executor.  Now,  as  I  understand  it,  by  the  decree 
of  1827,  in  the  case  of  Blake  and  Screven,  to  which  Benjamin  S.  Screven 
was  a  party,  the  whole  of  the  Barony,  including  as  well  that  part  devised 
to  Benjamin  S.  Screven  as  that  devised  to  the  plaintiff,  is  directed  to  be 
sold.  It  would  seem  then,  that  the  estate  of  Benjamin  S.  Screven  is 
precisely  in  the  same  situation  with  the  plaintiff,  and  has  the  same  claim 
to  relief  against  the  executor  and  residuary  legatees.  If  the  plaintiff's 
portion  of  the  land  should  be  separately  proceeded  against,  or  sold, 
leaving  untouched  Benjamin  S.  Screven's  part,  I  suppose  the  plaintiff 
would  be  entitled  to  contribution  ;  not,  however,  until  all  the  rest  of  the 
estate  were  exhausted. — The  bill  states  that  Benjamin  S.  Screven  parted 
with  that  part  of  the  Barony  which  he  received.  There  was  no  proof  on 
this  subject,  however,  nor  any  admission  in  the  answer  of  the  executor, 
Mr.  Joyner.  If  he  sold  the  land,  it  may  still  be  liable  in  the  hands  of 
the  vendees.  If,  as  has  occurred  in  the  case  of  the  plaintiff,  he  has  sold 
to  persons  whose  title  has  been  perfected  by  the  statute  of  limitations,  a 
different  question  might  arise.  I  can  conclude  nothing  on  this  part  of 
the  case  as  it  at  present  appears.  The  plaintiff  may,  if  he  thinks  proper, 
have  a  further  reference  to  enquire  and  report  whether  any,  and  what 
contribution  ought  to  be  made  by  the  estate  of  Benjamin  S.  Screven. 
On  such  reference  the  case  may  be  fully  made  out." 

Subsequent  to,  and  soon  after  this  decree,  the  plantations  called  Good 
Hope  and  Pilgrim's  Hope,  heretofore  mentioned,  were  sold  by  Blake 
under  the  decree  of  1827  ;  and  an  appeal  having  been  made  from  the 
decree  pronounced  by  Chancellor  Harper  in  1830,  on  Blake's  supple- 
mental bill,  the  Court  *of  Appeals,  by  a  decree  made  in  1831,  [-*256 
declared  the  whole  of  Jasper's  Barony  subject  to  the  lien  of  Blake's  L 
several  decrees,  except  as  to  such  parts  as  had  been  held  adversely  by 
purchasers  a  sufficient  length  of  time  to  be  protected  by  the  statute  of 
limitations  :  and  as  no  one  of  the  purchasers  from  Thomas  E.  Screven, 
who  were  parties  to  that  bill,  were  in  that  situation,  the  whole  of  the 
lands  purchased  by  them  for  him,  were  declared  liable  to  Blake's  debt, 
and  ordered  to  be  sold  accordingly.  Whereupon  the  said  lands  were 
sold,  or  arrangements  made  for  the  payment  of  Blake  in  exoneration  of 
said  lands,  by  Thomas  E.  Screven,  who  was  liable  over  to  his  vendees. 

A  reference  having  been  taken  to  the  Commissioner,  conformably  to 
the  decree  of  Chancellor  Harper,  he  reported  that  Benjamin  S.  Screven 
sold  the  residue  of  the  "  Lower  Plantation"  not  disposed  of  by  the  exe- 
cutors, consisting  of  eleven  hundred  acres,  to  Josiah  W.  AUston,  for  the 
price  of  $17,000  ;  that  this  sale  was  made  in  1804,  and  that  the  pur- 
chaser, or  those  claiming  under  him,  having  ever  since  been  in  quiet  and 
undisturbed  possession,  were,  according  to  the  decree  on  Blake's  supple- 


176  SOUTH   CAROLINA   EQUITY   REPORTS.  [*256 

mental  bill,  as  recognised  by  the  Court  of  Appeals,  protected  against 
Blake's  lien,  by  the  statute  of  limitations.  The  Commissioner  further 
reported,  that  every  portion  of  the  "Upper  Plantation,"  which  had  been 
devised  to  Thomas  E.  Screven,  had  been  sold  either  by  the  executors,  or 
by  Blake  under  his  several  decrees,  or  had  in  some  manner  been 
ultimately  subjected  to  the  payment  of  the  debt  due  to  Blake  :  and 
finally,  that  the  executor,  Richard  B.  Screven,  had  wasted  the  assets 
which  came  to  his  hands,  and  was  either  utterly  insolvent,  or  nearly  so  ; 
and  that  the  plaintiffs  could  have  no  reasonable  prospect  of  relief  either 
from  the  balance  due  by  his  executor,  or  from  the  legacy  of  £1000, 
which  he  had  been  ordered  to  refund. 

It  appeared,  however,  by  several  of  the  papers,  and  particularly  by 
Chancellor  Harper's  decree,  that  the  plaintiff  received  from  the  executor, 
Richard  B.  Screven,  eleven  negroes,  being  the  price  of  the  plantation 
called  "  Pilgrim's  Hope,"  M^hich  was  purchased  by  that  executor ;  of 
which  negroes  the  plaintiff  has  never  been  deprived,  nor  have 
^i)^--!  "^"they  ever  been  subjected  in  his  hands,  to  the  payment  of  Blake's 
-I  debt.  And  although  "  Pilgrim's  Hope"  has  since  been  sold  by 
Blake,  and  Richard  B.  Screven  may  consequently  have  a  claim  upon  the 
plaintiff  for  the  value  of  these  negroes  ;  yet  such  claim  can  only  be  a  set- 
off j^'f'o  tanto,  to  the  large  sums  due  by  Richard  B.  Screven  ;  and  the 
plaintiff  can  never,  therefore,  be  deprived  of  his  portion,  saved  to  him 
out  of  the  devise  of  Jasper's  Barony. 

Upon  the  coming  in  of  the  Commissioner's  report,  the  cause  came  on 
for  hearing  upon  the  equity  reserved,  before  Chancellor  Johnston,  who, 
after  argument,  ordered  and  decreed,  that  the  estate  of  lienjamin  S. 
Screven  should  contribute  for  the  relief  of  the  plaintiff,  and  directed  a 
reference  to  the  Commissioner  to  ascertain  and  report  the  amount  of  such 
contribution. 

No  reasons  were  assigned  in  the  order  for  this  decision.  The  defend- 
ant, William  Joyner,  appealed  therefrom  ;  and  moved  that  the  said 
order  may  be  reversed  for  the  following  reasons. 

1.  That  the  devises  to  the  plaintiff  and  defendant's  testator  are  distinct 
specific  devises,  and  neither  of  the  devisees  is  entitled  to  call  upon  the 
other  to  contribute  for  the  removal  of  incumbrances  specifically  affecting 
the  land  devised  to  himself 

2.  That  the  land  devised  to  the  defendant's  testator,  being  protected 
against  Blake,  is  equally  protected  against  all  persons  claiming  under 
him,  and  cannot  be  subjected  to  a  new  liability  to  the  plaintiff,  by  reason 
of  his  payment  of  his  debt  due  to  Blake. 

3.  That  the  land  devised  to  the  defendant's  testator  not  being  directly 
subject  to  Blake's  lien,  cannot  be  made  indirectly  liable  by  reason  of  the 
liability  of  the  plaintiff's  land. 

4.  That  if  the  land  devised  to  the  defendant's  testator  is  liable  to  the 
plaintiff,  the  remedy  of  the  plaintiff  is  against  the  land,  or  the  persons  in 
possession,  and  not  against  the  estate  of  the  defendant's  testator. 

5.  That  the  defendant's  testator  having  sold  the  laud  devised  to  him, 
*2581  ^"^  I'eceived  the  proceeds  so  long  ago  as  *1804,  more  than  twenty 

-'  years  previous  to  the  filing  of  the  plaintiff's  bill,  is  protected  by 
lapse  of  time  and  the  statute  of  limitations,  from  all  liability  to  refund. 


*258]  CHARLESTON,    APRIL,    1833.  177 

either  for  the  benefit  of  the  devisees  or  legatees,  or  for  the  benefit  of 
creditors. 

6.  That  the  assets  of  the  estate  being  originally  sufiBcient  for  the  pay- 
ment of  debts,  and  the  deficiency  of  assets  which  forms  the  foundation  of 
the  plaintiff's  claim  for  contribution,  being  occasioned  by  a  devastavii  of 
the  executor,  committed  long  subsequent  to  the  period  at  which  the 
defendant's  testator  sold  and  received  the  proceeds  of  the  lands  devised 
to  him,  the  estate  of  the  latter  is  not  bound  to  refund,  independently  of 
the  protection  afforded  by  the  statute  of  limitations. 

t.  That  the  plaintiff  has  not  made  out  a  case  which  entitles  him  to  call 
upon  the  estate  of  the  defendant's  testator  for  contribution. 

Bailey,  for  the  appellant,  contended,  that  the  defendant's  testator,  if 
liable  at  all,  must  be  so  as  terre-tenant  and  devisee ;  his  only  liabilitv  is 
in  regard  to  his  land.  The  ground  of  contribution  is  equality  of  benefits 
and  burthens  ;  Harris  v.  Ferguson,  2  Bailey,  397  ;  and  that  the  payment 
or  loss  by  the  party  asking  relief,  has  conferred  a  benefit,  or  relieved  ihe 
other  party  from  some  burthen  ;  1  Cox's  Ch.  Cases,  318  ;  1  Eq.  Ca  Ab. 
contribution,  (a)  13;  Show.  P.  C.  18,  19.  Unless  therefore  the  plaini iff, 
in  satisfying  Blake's  debt,  has  conferred  a  benefit  on  the  defendant's 
testator,  or  relieved  his  estate  from  some  burthen,  there  is  no  ground  for 
contribution.  No  benefit  has  been  conferred — the  land  was  not  liable  to 
Blake's  debt,  when  the  payments  were  made;  for,  having  been  sold  and 
in  the  occupation  of  a  bona  fide  purchaser,  he  acquired  a  title  under  the 
statute  of  limitations — M'Rea  v.  Smith,  2  Bay,  338  ;  and  in  reference  to 
this  land,  this  doctrine  was  settled  in  Blake  v.  Hey  ward,  February,  1831. 
Blake  could  not  pursue  the  money  recovered  by  Benjamin  S.  Screven  for 
the  lands  sold — his  only  remedy  was  against  the  land  ;  however  that  may 
be,  he  could  not  follow  the  money,  after  the  land  became  exempted  by  the 
statute  of  limitations,  3  Coke  Rep.  (a)  14.  *The  plaintiff  might  r-^^^rn 
have  been  protected  against  Blake's  decree,  so  far  as  regards  Ben-  ^ 
jamin's  proportion  of  the  purchase  money,  by  reason  of  his  laches  and 
neglect  to  enforce  it ;  and  this  may,  even  yet,  afford  him  ground  for  relief 
against  Blake,  but  furnishes  none  against  the  defendant.  The  defici-iicy 
here  is  not  for  want  of  assets,  but  caused  by  a  devastavit  of  the  executor ; 
the  whole  estate  was  liable  for  Blake's  debt,  and  if  contribution  is  to  be 
made,  are  not  all  the  devisees  liable  ?  But  the  plaintiff  has  received  prat 
payment,  by  the  negroes  received  from  the  executor,  on  a  sale  of  "  I'il- 
grim's  Hope."  And  where  a  legatee  has  received  part  of  his  legacy,  and 
the  executor  wastes  the  balance  of  the  estate,  there  can  be  no  contribu- 
tion ;   1  P.  W.  494;  Lupton  i:  Lupton,  2  John.  Ch.  Rep.  626. 

7?.  B.  Smith,  Atlorneij-General,  for  the  plaintiff".  The  decree  of  1802, 
fixing  the  liability  of  the  lands,  and  that  of  1806,  ordering  them  to  be 
sold,  established  the  right  of  contribution.  By  the  decree  of  1806,  the 
whole  estate  of  John  Screven  was  subjected  to  Blake's  debt:  1st,  the 
Barony  lands— 2d,  the  funds  appointed  by  the  will ;  and  Sdly,  the  residue 
of  the  real  and  personal  estate.  Benj.  S,  Screven  was  executor,  and  a 
party  to  these  decrees,  and  could  he  now  deny  his  liability  for  this  debt, 
or  that  he  is  bound  by  these  decrees  ?  Benjamin  being  liable  for  the  del)t, 
and  a  party  to  the  decree  which  ordered  Thomas"  land  to  be  sold  for  its 
payment,  becomes  liable  for  contribution.  Where  land  subject  to  au 
incumbrance  is  sold  to  several,  and  the  debt  is  exacted  of  one  of  them,  he 
YoL   I.— 12 


178  SOUTH   CAROLINA   EQUITY   REPORTS.  [*259 

is  entitled  to  contribution  from  the  others  ;  Carthew,  3.  And  where  the 
lands  of  the  ancestor  is  bound  for  his  debts,  which  are  paid  by  one  of  his 
devisees,  the  others  must  contribute ;  Clowes  v.  Dickerson,  5  John.  Ch. 
Rep.  240;  Select  Cases  in  Chancery,  24;  4  John.  Ch.  Rep.  531.  If  all 
the  land  had  been  alienated,  could  not  Blake  have  compelled  them  to 
refund  and  pay  his  debt  ?  The  property  of  the  devisees  stands  as  surety 
for  the  executor — Benjamin  and  Thomas  may  be  considered  such,  and 
raav  be  subrogated  to  the  rights  of  the  creditor;  11  Yes.  22;  2  Vernon 

:k.-jpol  ^^^^'^    ^  '^°^"-   ^^-   -^^l^-  ^^^'^    ^^^-  ^^^-     '^^^  *devastavit  of 
~     -'  the  executor  must  prejudice  both  devisees  alike ;  and  where  one 

legatee  has  received  his  legacy  in  full,  it  is  not  clear  that  he  may  not  be 

compelled  to  refund,  2  Yes.  193. — An  executor  who  has  voluntarily  paid 

a  legacy  cannot  compel  the  legatee  to  refund,  but  if  the  executor  prove 

insolvent,  the  other  legatees  may  have  contribution,  1  Ch.  Ca.  133,  136, 

248;  2  lb.  132. 

Pettigru,  in  reply.  The  bill  of  1802  was  against  the  execntors  of  John 
Screven  ;  BenjaVnin  and  Thomas  were  infants,  and  their  answers  not 
sworn  to,  consequently  are  not  answers,  and  they  not  parties.  That  part 
of  the  decree  which  relates  to  contribution,  is  not  therefore  obligatory. 
But  can  a  creditor  have  such  a  decree  as  this  hanging  over  an  estate  ? 
He  is  entitled  to  a  decree  to  be  paid  in  due  course  of  administration. 
Blake  could  have  extended  only  one-half  of  Thomas'  land.  Francis' 
Maxims,  15,  sustains  Lord  Coke's  doctrine.  If  one  legatee  refund,  then 
the  other  must;  but  the  decree  of  1827  imposes  a  lien  only  on  the  lands 
in  possession  of  the  devisees  ;  no  liability  exists  against  the  lands  of 
Benjamin — the  payment  of  the  decree  confers  no  benefit,  and  there  is, 
therefore,  no  ground  for  contribution.  Lands  devised  are  liable  for  the 
payment  of  debts,  after  the  personal  estate  is  exhausted  ;  but  if  a  creditor 
stands  by,  as  Blake  has  done,  and  permits  the  personalty  to  be  wasted, 
has  he  any  right  to  pursue  the  land  ? 

O'Neall,  J.  In  the  view  which  we  have  taken  of  this  case,  it  will 
only  be  necessary  to  enquire  whether  the  defendant's  testator  is  liable  to 
contribution  on  account  of  Blake's  decree. 

The  liability  to  contribute  is  the  result  of  a  general  equity  founded  on 
the  equality  of  "burthens  and  benefits  ;"  Harris  u.  Ferguson,  2  Bail.  397. 
To  establish  the  right  of  contribution,  the  plaintiff  must  show  that  his 
payment  has  removed  a  common  burthen  from  the  shoulders  of  himself 
and  the  defendant,  and  that  they  are  each  benefitted  by  it.  This  occurs 
in  all  cases  of  payments  made  by  one  surety,  on  the  debt  for  which 
*.9/»T  -]  several  are  bound — a  common  burthen  *is  removed  and  a  common 
^  benefit  received.  But  the  doctrine  of  contribution  is  not  at  all 
founded  on  contract ;  it  applies  to  cases  where  the  liability,  it  is  true, 
arises  out  of  a  contract,  to  which  the  plaintiff  and  defendant  were  parties ; 
it  is  not,  however,  necessary  that  they  should  be  bound  by  one  contract; 
it  may  arise  out  of  several,  if  they  have  thereby  incurred  a  common 
liability.  So,  too,  it  applies  to  cases  where  the  liability  does  not,  in  any 
shape,  arise  out  of  a  contract,  as  when  a  common  property,  held  by 
purchase,  descent  or  devise,  is  liable  to  the  payment  of  a  sum  of  money, 
and  one  is  compelled  to  pay  the  whole,  he  shall  have  contribution  from 


I 


*261]         CHARLESTON,  APRIL,  1833.  179 

his  co-tenant.  In  cases  where  a  benefit  is  derived  from  the  destruction 
of  the  property  of  one  for  the  preservation  of  another;  when  tliere  is  a 
community  of  risk,  there  may  be  contribution.  But  to  make  out  such  a 
claim,  tlie  benefit  must  be  shown  to  have  been  the  necessary  and  proper 
consequence  of  the  loss.  For  if  the  benefit  is  uncertain,  or  the  loss  was 
not  the  means  of  preservation,  there  can  be  no  contribution.  1  Eq.  Ca. 
Ab   Tit.  Con.  &  Aver.  (.4)  13. 

The  right  of  the  complainant  to  call  on  the  defendant  for  contribution, 
depends  not  upon  any  act  or  personal  liability  of  his  testator.  If  he  is 
liable  at  all,  it  must  be  that  the  land  devised  to  him  was  liable,  as  well  as 
that  of  the  complainant,  to  the  lien  of  Blake's  decree  at  the  time  it  was 
enforced  and  the  complainant's  land  sold  under  it.  To  make  out  either 
the  community  of  burthen  or  benefit,  the  decree  must  have  had  an  equal 
lien  on  both,  and  both  must  have  had  the  benefit  of  the  removal  of  the 
lien. — The  decree,  as  a  subsisting  lien,  constitutes  the  only  liability  to 
which  the  land  of  either  was  subject.  If  that  was  ended  as  to  one,  and 
not  as  to  the  other,  there  was  no  liability  on  the  former,  to  be  removed 
by  the  latter.  Originally  both  were  affected  alike  by  the  general  lien. 
A  lapse  of  near  twenty  years,  and  a  conveyance  of  his  land  by  the  de- 
fendant's testator,  may  have  changed  the  operation  of  that  lien,  and  may 
have  ended  the  defendant's  liability,  while  that  of  the  complainant  remained 
unimpaired.  It  is  necessary,  therefore,  to  enquire  whether  the  land 
*devised  to  the  defendant's  testator,  was  liable  to  sale  under  r^^^nc^ 
Blake's  decree,  at  the  time  the  complainant  was  compelled  to  pay  ^ 
it?  In  1804,  the  defendant's  testator  sold  to  Josias  W.  Alston  :  his  title 
accompanied  by  an  actual  adverse  possession,  was  complete  and  legal, 
against  the  lien  of  Blake's  decree,  after  the  expiration  of  five  years. 
M'Rea  v.  Smith,  2  Bay,  339.  In  1809  or  1810,  the  land  was  protected 
from  the  lien  of  Blake's  decree,  and  therefore,  as  to  it,  it  was  and  must  be 
considered  as  then  ended.  The  payment  by  the  complainant  was  between 
1827  and  1832,  a  period  of  at  least  seventeen  years  after  the  land  devised 
to  the  defendant's  testator  was  exonerated  by  the  operation  of  the  statute 
of  limitations,  from  the  lien  of  Blake's  decree. 

I  agree  with  the  complainant's  counsel  that  the  liability  of  the  defend- 
ant to  contribute,  depends  upon  the  question  whether  Blake  could  have 
recovered  against  him,  at  the  time  he  did  against  the  complainant.  We 
have  seen  that  the  lien  of  the  decree  was  gone  in  1810  ;  in  1823,  Blake 
filed  his  bill  to  make  the  complainant's  land  liable ;  Blake  could  not 
therefore  then  have  made  the  land  devised  to  the  defendant's  testator 
liable  under  the  decree.  Could  he  have  had  any  recovery  on  account  of 
his  sale  ?  If  he  could  ever  have  recovered  any  thing  on  tliat  account,  it 
must  have  been  on  the  ground  that  the  money  received  by  the  defendant's 
testator,  was  to  be  regarded  as  received  to  the  use  of  the  creditor  under 
the  decree.  This  in  equity  might  have  made  the  defendant  a  constructive 
trustee  for  the  creditor.  But  this  constructive  trust  would  not  prevent 
the  operation  of  the  statute  of  limitations ;  the  defendant  in  such  a  case 
holds  in  his  own  right  and  adversely  to  that  of  all  others.  From  the 
time,  therefore,  that  the  creditor  knew  of  his  sale,  the  statute  commenced 
to  run,  and  as  the  claim  for  the  account  in  Equity  is  analogous^  to  the 
action  for  money  had  and  received  at  law,  it  would  run,  out  in  four 
years  from  that  time.     In  1806  this  fact  was  not  only  known  to  Blake, 


180  SOUTH    CAROLINA    EQUITY    REPORTS.  [*262 

but  is  made  the  ground  of  exempting  that  part  of  the  Barony  from  sale, 
under  the  decree  then  made.  In  1810,  then,  the  defendant's  testator 
would  have  been  protected  by  the  statute  of  limitation  from  any  recovery 
on  the  part  of  Blake. 

^  -J  ^Neither  the  land  nor  the  defendant's  testator  being  liable  at 
-^  the  time  the  complainant  was  compelled  to  pay  the  decree,  it 
follows  that  the  complainant  has  no  right  to  claim  a  contribution  from 
the  defendant,  on  account  of  a  payment  which  did  not,  and  could  not 
benefit  it. 

It  may  be,  and  I  think  it  probable,  that  if  the  complainant  had  resisted 
payment  of  Blake's  decree,  on  the  ground  that  by  his  laches  the  land  of 
the  defendant's  testator  was  exonerated  from  its  lien,  that  the  complainant 
would  only  have  been  held  liable  for  his  aliquot  proportion  of  the  debt. 
For  in  3  Coke's  Rep.  14,  it  is  said,  "Note  reader,  when  it  is  said  before 
and  often  in  our  own  books,  that  if  one  purchaser  be  only  extended  for 
the  whole  debt,  that  he  shall  have  contribution  ;  it  is  not  thereby  intended, 
that  the  others  shall  give  or  allow  him  anything  by  way  of  contribution  ; 
but  it  ought  to  be  intended,  that  the  party  who  is  only  extended  for  the 
whole,  may,  by  audita  querela  or  scire  facias,  as  the  case  requires,  defeat 
the  execution,  and  thereby  he  shall  be  restored  to  all  the  mesne  {)rofits, 
and  compel  the  conusee  to  sue  execution  of  the  whole  land.     So,  in  this 
manner,  every  one  shall  be  contributory,  hoc  est,  the  land  of  every  terre- 
tenant  shall  be  equally  extended."     In  this  State,  the  creditor  would,  at 
law,  have  the  right  to  make  his  money  by  a  Ji.  fa.  out  of  any  of  the  land 
subject  to  the  lien  of  his  judgment.     And  if  the  land  of  one  purchaser, 
heir  or  devisee  was  sold,  he  would  have  a  clear  right  in  equity,  to  con- 
tril)ution  from  the  others  whose  land  was  equally  subject  to  the  lien.     If 
the  act  or  laches  of  the  creditor  defeats  that  equity,  it  would  seem  that 
equity  ought  to  prevent  him  from  enforcing  his  legal  advantage,  by  hold- 
ing the  party  only  liable  to  him  for  so  much  of  the  debt  as  would  be 
properly  charged  on  his  land  as  its  proportionate  share.     In  other  words, 
he  ought  to  be  protected  against  the  judgment,  on  paying  so  much  towards 
it  as  he  would  have  been  in  equity  liable  to  contribute,  if  the  land  which 
is  exempted  by  the  act  or  laches  of  the  creditor,  had  been  sold  for  the 
payment  of  the  whole  debt.     Be  this  however  as  it  may,  the  complainant, 
by  paying  a  debt  which  the  defendant's  testator  was  not  in  any  event 
liable  to  pay,  cannot  acquire  any  rights  against  him. 
*9r4.1       *      "^^^  contended  that  the  fact  that  B.  S.   Screven  was  the 
-■  executor  as  well  as  the  devisee  of  John  Screven,  (deceased)  and 
that  he  was  a  party  to  the  decrees,  made  him  liable.     It  appears  that  in 
1807  he  terminated  his  relation  of  executor  to  his  testator's  estate,  by 
fully  accounting  for  the  funds  in  his  hands  and  removing  from  the  State. 
Since  that  time  he  has  not  acted  as  executor,  and  there  is  no  pretence 
that  he  is  liable  for  anything  in  that  character.     If  he  is  not  liable  to 
account  as  executor,  the  fact  that  he  was  the  executor,  cannot  have  any 
effect  upon  him  in  any  other  character  in  which  he  may  be  called  on  for 
an  account. 

He  was  a  party  to  the  decree  obtained  by  Blake,  and  if  upon  it  any 
action  could  be  sustained  against  him,  it  might  make  him  liable.  But 
there  is  no  recovery  against  him  for  a  debt  or  demand,  nor  is  there  any 
sum  ascertained  by  the  decree,  to  be  in  his  hands,  applicable  to  its  pay- 


*264]  CHARLESTON,  APRIL,  1833.  181 

merit.  The  decrees  of  1802  and  1806,  merely  establish  the  debt  against 
his  testator's  estate ;  and  in  consequence  of  their  legal  effect,  make  the 
whole  of  the  estate  of  the  testator  liable  for  their  pajunent ;  no  personal 
liability  is  thereby  cast  on  the  defendant's  testator,  and  of  conrse,  the  fact 
that  he  was  a  party,  will  not  deprive  him  of  the  defence  now  relied  on. 

It  is  therefore  ordered  and  decreed,  that  so  much  of  Chancellor 
Harper's  decree  as  directs  a  reference  to  ascertain  whether  any,  and 
what  contribution,  ought  to  be  made  by  the  estate  of  Benjamin^  S. 
Screven  ;  and  the  decree  of  Chancellor  Johnston,  upon  the  report  of 
the  Commissioner,  directing  contribution  to  be  made  by  the  estate  of 
Eenjamin  S.  Screven,  deceased,  for  the  relief  of  the  complainant,  be 
reversed. 

Johnson  and  Harper,  Js.,  concurred. 


*Benjamin  Adams,  and  others.  Heirs- at-Law  of  Ann  Adams, 

V.  Benjamin  S.   Chaplin,   and  others,  Heirs-at-Law  of      [*265 
Benjamin  Chaplin. 

A  ■witness  may  attest  the  execution  of  a  "will,  by  signing  the  initials  of  bis  or  her 
name.[*266] 

Where  the  testator  devised  a  tract  of  land  to  his  son  "  John,  and  to  him  and  his 
heirs  and  assigns  forever  ;  Vjut  if  he  should  die  without  lawful  heir,  or  before  he 
is  twenty-one  years  old,"  then  the  land  to  go  to  another  son  :  the  word  "  cr"  was 
construed  "  and,"  and  it  was  held,  that  John  took  an  absolute  estate,  in  fee, 
defeasible  on  his  dying  without  issue  under  twenty-one  years  of  age;  that  the 
limitation  over,  was  not  after  an  indefinite  failure  of  issue,  but  restricted  to  the 

.  event  of  the  devisee's  dying  without  issue  under  twenty-one,  and  was  therefore 
good  as  an  executory  devise. (a) [*2G7] 

Where  tliere  was  a  devise  to  J.  C,  "  but  if  he  should  die  without  an  heir  lawfully 
begotten  by  him,"  then  a  limitation  over  :  Held,  that  the  limitation  was  too 
remote  and  therefore  void.[*2ti8] 

The  doctrine  of  merger  considered  [*270] 

Where  a  fee  simple  conditional  is  granted,  the  whole  estate  is  in  the  tenant  in  fee — 
there  is  no  estate  left  in  the  grantor.  The  possibility  of  reverter,  on  the  deter- 
mination of  the  fee  by  the  death  of  the  tenant  without  lieirs  of  his  body,  is  not  an 
estate,  it  is  neither  the  subject  of  inheritance  nor  devise  ;  and  therefore,  the  fee 
conditional  in  the  heir-at-law,  cannot  merge  in  the  possibility  of  reverter,  if  they 
should  both  meet  in  the  same  person. [*27r)] 

Devise  in  '7(3,  to  J.  C.  without  words  of  perpetuity  or  inheritancp,  "  but  if  he  should 
die  without  an  heir  lawfully  begotten  by  him,"  then  a  limitation  over —  the  lim- 
itation being  too  remote  and  therefore  void,  it  was  held,  tliat  under  the  act  of 
1824,  and  the  adjudged  cases  since  the  devisee  J.  C,  took  an  estate  in  fee.(*281 ) 

This  case  came  to  a  hearing  before  Chancellor  Harper,  at  Coosa- 
whatchie,  January,  1830.  The  decree  so  fully  recites  the  facts,  and 
develops  the  merits  of  the  case,  as  to  supersede  the  necessity  of  any 
other  report. 

Harper,  Chancellor.  Benjamin  Chaplin,  the  elder,  of  St.  Helena 
Parish,  by  his  will,  dated  in  1766,  devised  the  tract  of  land  which  is  m 

(a)  Scanlan  v.  Porter,  1  Bail.  427.  Bedon  v.  Bedon,  2  lb.  231. 


182  SOUTH   CAROLINA   EQUITY   REPORTS.  [*265 

question  in  this  suit,  in  manner  following  :  "  I  give  and  bequeath  to  ray- 
son  John  all  the  rest  of  my  tract  of  land  where  I  now  live,  be  it  more  or 
less,  to  him  and  his  heirs,  for  ever ;  but  if  he  should  die  ivUhout  lawful 
heir,  or  before  he  is  tiventy-one  years  old,  then  'tis  my  iny  loill  the  said 
land  should  go  to  and  descend  to  my  son  William,  and  to  his  heirs  for 
ever."  John  Chaplin,  the  devisee,  by  his  will,  dated  in  1716,  devised  the 
same  land  as  follows — "  I  give  and  bequeath  to  my  dear  and  loving  son, 
John  Chaplin,  my  tract  of  land  on  Port  Royal  Island,  lying  on  Jericho 
Creek;  but  if  he  should  die  ivithout  an  heir  knvfully  begotten  by  him, 
then  I  will  and  desire  that  the  said  tract  of  land  be  given  to  my  brother, 
William  Chaplin."  John  Chaplin,  the  testator,  died  soon  after  the 
execution  of  his  will,  leaving  John  Chaplin,  his  son  and  only  child,  who 
entered  on  the  land,  and  died  in  1826,  leaving  no  issue  and  never  having 
been  married.  William  Chaplin,  to  whom  the  land  is  devised  over  by 
the  will  of  the  testator,  John,  died  many  years  ago  intestate  and  without 
issue,  before  the  Act  of  1791,  abolishing  the  right  of  primogeniture, 
leaving,  at  his  death,  an  elder  brothei',  Benjamin,  and  a  sister,  Ann 
Adams.  The  complainants  are  the  descendants  of  Ann  Adams,  and 
claim  a  moiety  of  the  land,  either  as  heirs  and  next  of  kin  of  William 
Chaplin,  the  devisee  over,  by  the  will  of  John  Chaplin,  if  that  limitation 
shall  be  held  to  have  been  good  ;  or,  as  heirs  and  next  of  kin  of  the 
testator  John  Chaplin,  if  the  reversion  or  possibility  of  reverter,  was  in 
*9fifi1  ^^^'i  charging  that  John  Chaplin,*  the  younger,  either  took  a 
-I  mere  life  estate,  or  a  fee  simple  conditional,  which  was  determined 
by  his  death,  without  issue,  in  1826,  and  that  those  must  take  who  answer 
the  character  of  heirs,  at  the  time  of  the  determination  of  the  estate,  or 
the  happening  of  the  contingency  on  which  the  limitation  over  was  to 
take  effect.  In  1806  the  land  was  sold  under  judgment  and  execution,  as 
the  property  of  John  Chaplin,  the  younger,  and  purchased  by  Benjamin 
Chaplin,  the  brother  of  William  and  the  testator  John,  to  wdiom  the 
sheriff  executed  titles.  In  1815,  the  said  Benjamin  Chaplin  conveyed 
the  land  in  trust,  for  his  daughters,  who  are  defendants  to  the  suit.  The 
defendant,  Benjamin  S.  Chaplin,  son  of  the  said  Benjamin  Chaplin,  dis- 
claims all  interest  in  the  land. 

The  first  question  which  arises  in  the  case,  is,  what  estate  in  the  land, 
John  Chaplin,  the  elder,  took  under  the  will  of  his  father  Benjamin 
Chaplin,  and  consequently,  whether  his  son,  John  Chaplin  the  younger, 
took  as  a  purchaser  under  his  will,  or  by  virtue  of  the  limitation  of  his 
grandfather's  will.  A  preliminary  objection  was  made,  that  the  will  of 
Benjamin  Chaplin  appears  to  have  been  attested  but  by  two  subscribing 
witnesses,  and  consequently  was  not  duly  executed  to  pass  real  estate. 
The  name  of  Martha  Barnwell  first  appears  subscribed  as  a  witness ; 
then  follow  the  letters  E.  E.,  and  then  the  name  of  John  Barnwell.  The 
certified  copy  of  the  will  was  admitted  in  evidence,  I  suppose,  on  the 
proof  which  appears  to  have  been  made  of  it  before  a  commissioner,  to 
whom  a  dedimus  for  that  purpose  was  issued  by  the  Governor.  The 
witness,  John  Barnwell,  declares  that  he  subscribed  as  a  witness,  together 
with  Martha  Barnwell  and  Elizabeth  Ellis.  If  Elizabeth  Ellis  subscribed 
by  merely  making  her  initials,  I  suppose  that  this  was  sufficient,  under 
the  authorities  of  Harrison  v.  Harrison,  8  Ves.  185,  and  Addy  v.  Grix, 


*266]  CHARLESTON,    APRIL,    1833.  183 

8  lb.  504,  wliicli  determine  that  the  making  of  a  mark  is  sufficient  signin"- 
by  a  witness. 

Then,  as  to  the  estate  devised  by  the  will.  It  was  argued,  that  though 
the  devise  to  John  is  to  him  and  his  heirs,  for  ever,  yet  being  limited 
over  on  the  event  of  his  *dying  without  lawful  heir,  to  his  brother,  r^^n^ 
who  might  be  his  heir,  this  is  equivalent  to  a  limitation  over  on  ^  -^  ' 
the  event  of  his  dying  without  issue,  and  restricts  the  preceding  words, 
so  that  it  would  make  it  an  estate  tail  in  England,  or  a  fee  simple  con- 
ditional in  this  country.  That  being  a  fee  simple  conditional,  John 
Chaplin,  the  younger,  took  nothing  from  his  father's  will,  but  X)er  formam 
cloni,  as  heir  of  limitation,  under  the  will  of  his  grandfather,  and  the  con- 
dition being  once  performed,  by  John,  the  elder's,  having  issue,  the  heir 
to  whom  the  estate  descended  might  alienate  and  bar  the  reverter,  with- 
out any  necessity  for  his  having  issue,  and  that  the  levy  and  sale  by  the 
sheriff,  being  the  act  of  law,  was  equivalent  to  an  alienation  by  the  heir 
himself.  There  is  no  doubt  but  if  lands  be  given  to  a  man  and  his  heirs, 
and  limited  over  on  the  event  of  his  dying  without  issue,  or  heirs  of  his 
body  generally,  that  will  restrict  the  effect  of  the  preceding  words,  and 
make  it  an  estate  tail,  or  fee  simple  conditional.  The  limitation  over 
after  an  indefinite  failure  of  issue,  sufficiently  indicates  the  intention  to 
give  an  estate  tail,  with  a  remainder  expectant  on  its  determination.  But 
the  devise  over,  in  this  case,  is,  "  If  he  should  die  without  lawful  issue,  or 
before  he  is  twenty-one  years  old."  I  am  satisfied,  that  here  "or"  is  to 
be  construed  "and,"  and  consequently,  that  the  limitation  over  is  not 
after  an  indefinite  failure  of  issue,  but  restricted  to  the  event  of  the 
devisee's  dying  without  issue  under  the  age  of  twenty-one,  and  is,  there- 
fore, a  good  executory  devise,  after  the  gift  of  the  estate  in  fee-simple. 
There  are  several  cases  precisely  in  point,  and  they  seem  to  me  founded 
on  good  reason,  to  effect  the  testator's  intention.  They  go  upon  this, 
that  it  cannot  be  supposed  to  have  been  the  testator's  intention,  in  the 
event  of  the  devisee's  dying  under  twenty-one,  but  leaving  issue,  to  give 
the  estate  away  from  the  issue  ;  yet  this  would  be  the  effect  of  construing 
the  words  disjunctively,  making  an  executory  devise  dependent  solely  on 
the  event  of  the  first  devisee's  dying  under  twenty-one,  and  a  limitation 
over  after  an  estate  tail.  Lord  Hardwicke,  in  Brownsword  v.  Edwards, 
1  Yes.  249,  refers  to  cases  in  Croke,  deciding  the  *precise  point ;  j-*2(j8 
and  to  the  same  effect  are  the  cases  of  Fairfield  v.  Morgan,  2  Bos. 
&  Pull.  New  Rep.  38,  and  Eastman  v.  Baker,  1  Taunt.  174.  There  are 
other  cases  to  the  same  effect.  I  am  satisfied  that  under  the  will  pf  his 
fatiier,  John  Chaplin,  the  elder,  took  an  absolute  estate  in  fee  simple, 
subject  only  to  be  divested  on  an  event  which  never  happened. 

We  are  next  to  consider  the  devise  by  the  will  of  John  Chaphn,  the 
elder.  The  devise,  in  the  first  instance  is  to  John  Cliaplin,  the  younger 
without  words  of  inheritance  or  perpetuity,  which,  in  England,  would 
give  but  an  estate  for  life.  The  estate  is  limited  over,  however,_to  the 
brother  of  the  testator,  if  the  devisee  should  die  "  without  an  heir  law- 
fully begotten  by  him."  This  is  equivalent  to  dying  without  he^irs  of  his 
body,  and  according  to  the  decision  in  Forth  v.  Chapman,  I  Pr.  \\  ms. 
663,  which  has  been  followed  ever  since,  this  is  sufficientto  enlarge  by 
implication,  the  preceding  estate  for  life,  into  an  estate  tail.  1  he  same 
implication,  will,  I  think,  in  this  country  make  it  a  fee  simple  conditional. 


184  SOUTH    CAROLINA    EQUITY    REPORTS.  [*268 

It  is  clear,  that  the  limitation  over  to  the  testator's  brother,  "William 
Chaplin,  was  too  remote,  and  void  as  an  executory  devise.  In  the  case 
of  Bailey  v.  Seabrook,  decided  by  me  at  Charleston,  I  considered  the 
question  whether  a  remainder  could  be  limited  after  a  fee  conditional, 
and  determined  that  it  could  not.  I  refer  to  that  case  for  the  reasons  of 
my  opinion.  The  condition  not  having  been  performed,  the  devisee  never 
having  had  issue,  the  estate  is  therefore  supposed,  on  the  death  of  John 
Chuplin,  the  younger,  in  1826,  to  have  reverted  to  the  right  heirs  of 
John  Chnplin,  the  elder.  The  question  is,  who  are  those  heirs  ?  At  the 
diath  of  John  Cliai)lin,  the  elder,  his  son,  John,  was  his  heir-at-law,  and 
the  right  of  possibility  of  reverter,  which  his  father  had  in  the  land,  is 
supposed  to  have  descended  to  him.  On  the  part  of  the  complainants,  it 
was  argued  that  those  must  take  who  answered  the  character  of  heirs  of 
John  Chaplin,  the  elder,  at  the  time  the  estate  of  John  Chaplin  the  younger 
determined ;  according  to  the  rule  laid  down  by  Cruise,  in  his  Treatise  on 
Ileal  Property,  3  vol.  412,  tit  xxix.,  chap.  iv.  2,  "that  where  a  person 
*9rQl  ^"titled  to  *an  estate  in  remainder  or  reversion,  expectant  on  a 

-I  freehold  estate,  dies  during  the  continuance  of  the  particular 
estate,  the  remainder  or  reversion  does  not  descend  to  his  heir;  because 
he  never  had  a  seisin  to  render  him  the  stock  or  root  of  an  inheritance; 
but  it  will  descend  to  the  person  who  is  heir  to  the  first  purchaser  of  such 
remainder  or  reversion,  at  the  time  when  it  comes  into  possession." 
"Thus  it  was  laid  down  by  the  Court  of  King's  Bench,  in  34  Eliz.,  that 
of  a  reversion  or  remainder  expectant  on  an  estate  for  life,  or  in  tail, 
there,  he  who  claims  the  reversion  as  heir,  ought  to  make  himself  heir  to 
him  who  made  the  gift  or  lease,  if  the  reversion  or  remainder  descend 
from  him  ;  or,  if  a  man  purchase  such  reversion  or  remainder,  he  who 
claims  as  heir,  ought  to  make  himself  heir  to  the  first  purchaser."  The 
doctrine  is  very  fully  illustrated  by  Cruise,  in  the  chapter  referred  to,  and 
I  have  little  douljt  is  applic'al)le  to  the  present  case.  Our  act  of  distri- 
butions has  so  far  altered  the  English  law,  that  actual  seisin  is  no  longer 
necessary  to  enable  one  who  has  a  present  title  to  an  estate,  to  become 
the  stock  or  root  of  inheritance.  It  provides  for  distribution,  "when 
any  person  jjossessed  of,  interested  in,  or  entitled  to  a  real  estate,  in  his 
own  right  in  fee  simple,"  shall  die  intestate.  This,  I  suppose,  would  be 
held  to  apply  to  a  reversion  or  remainder,  after  an  estate  for  life,  or  an 
estate  tail,  if  such  were  allowed  in  this  country,  because  such  a  remainder 
or  reversion  is  an  estate  of  fee  simple.  But  the  authorities  are,  that  the 
right  of  reverter  after  a  fee  simple  conditional,  is  no  estate  in  the  land, 
but  a  mere  possibility,  and  therefore  it  is,  no  remainder  can  be  limited 
after  the  preceding  fee.  This  right  then,  I  su})pose,  is  not  affected  by 
the  act,  but  must  go  as  at  common  law,  to  the  person  who  can  make  him- 
self heir  to  the  grantor  of  the  fee  conditional,  when  that  estate  determines. 
The  complainants  and  defendants,  together,  were  such  heirs,  by  virtue  of 
our  statute  abolishing  the  right  of  primogeniture,  being  nephews  or  nieces, 
and  next  of  kin  of  John  ClKi|)lin  the  elder.  An  heir  is  the  creature  of  the 
law,  and  there  can  be  l)ut  one  rule  of  succession. 
*(^f7(\-]       This  view  of  the  case  would  seem  to  entitle  the  complainants* 

-J  equally  with  the  defendants,  to  a  moiety  of  the  land.  But  it  was 
further  argued,  on  the  part  of  the  defendants,  that  although  by  the  words 
of  the  will  of  John  Chaplin,  the  elder,  only  a  fee  simple  conditional  was 


*270]  CHARLESTON,   APRIL,    1833.  185 

given,  yet  by  his  death  the  right  of  reverter,  which  would  have  remained 
in  him  if  he  had  conveyed  in  his  life  time,  descended  or  accrued  to  his 
son,  who  was  his  heir-at-law.  Tiiat  having  thus  the  conditional  fee,  and 
the  ulterior  right  to  the  fee  absolute,  the  lesser  estate  merged  in  the 
greater,  and  his  estate  was  a  fee  simple  absolute.  This  is  a  suliject  of 
considerable  difficulty,  and  I  have  not  found  the  authorities  so  clear  as 
could  be  wished.  I  have  come  to  the  conclusion,  however,  that  this  is  a 
correct  view  of  the  case,  and  that  John  Chaplin,  the  younger,  had  an 
absolute  fee  simple.  The  doctrine  is  expressly  laid  down  by  Cruise,  1st 
vol.  92  :  "  It  has  been  stated  that  whenever  a  particular  estate  in  land 
vests  in  the  person  who  has  the  fee  simple  of  the  same  land,  such  partic- 
ular estate  is  immediately  drowned  or  merged  in  it.  In  consequence  of 
this  principle,  if  an  estate  had  been  given  before  the  statute  tie  donis,  to 
A,  and  the  heirs  of  his  body,  it  would  have  merged,  if  the  fee  simple  was 
limited  to  A  by  the  same  conveyance,  or  come  to  him  aftertvards.''^  So, 
in  Preston's  conveytyicing,  3d  vol.  258,  it  is  said,  that  "determinable 
fees,  qualified  fees,  and  conditional  fees,  will  merge  in  the  fee  simple,  or 
in  any  fee  of  the  same  or  a  larger  extent,"  Neither  of  these  authors 
refer  to  any  express  authority  in  support  of  their  positions ;  they  are 
their  own  inferences  from  acknowledged  principles.  There  is  no  doubt 
of  the  general  principle,  that  a  person  having  a  particular  estate,  and  af- 
terwards acquiring  a  greater  estate,  or  the  fee,  the  lesser  estate  is  merged 
in  the  greater.  The  ditFiculty  arises  from  what  is  said  concerning  the 
nature  of  the  right  which  remains  in  the  donor  of  a  conditional  fee  sim- 
ple— that  it  is  no  estate  or  interest,  but  a  mere  possibility,  which  cannot 
be  granted  or  assigned.  Co.  Lit.  18  a.  Lord  Coke  says,  that  "he  who 
hath  a  fee  conditional  or  qualified,  hath  as  ample  and  great  an  estate,  as 
he  that  hath  a  fee  simple  absolute,"  and  there  cannot  be  two  fees  simple 
in  the  same  land.  Yet,  perhaps,  the  difficulty  is  rather  verbal  than  sub- 
stantial. Lord  Coke  says,  in  the  same  *page,  there  cannot  be  two  ri^c)>j-\ 
fees  simple  absolute  in  the  same  land.  He  adds,  "  and  yet  in  sev-  ^ 
eral  i)ersons,  by  act  in  law,  a  reversion  may  be  in  fee  simple  in  one,  and  a 
fee  simple  determinable  in  another,  by  matter  ex  post  facto:  as  if  a  gift 
in  tail  be  made  to  a  villein,  and  the  lord  enter,  the  lord  hath  a  fee  simple 
qualified,  and  the  donor,  a  reversion  in  fee.  But  if  the  lord  enfeoff  the 
donor,  now  both  fee  simples  are  united,  and  he  hath  but  one  fee  simple  in 
him."  This  seems  a  plain  instance  of  merger.  He  explains  further,  that 
one  fee  simple  cannot  be  made  to  depend  upon  another,  by  the  grant  of 
the  party.  Here,  it  was  the  act  of  the  law  casting  the  right  of  reverter 
on  John  Chaplin,  the  younger,  which  merged  the  estate  given  by  the  will. 
Or,  rather,  I  think  John  Chaplin,  the  younger,  must  be  regarded  as  in  by 
descent,  and  taking  nothing  by  the  will. 

Justice  Blackstone,  2  Com.  178,  puts  the  doctrine  of  merger  on  the 
footing  of  a  virtual  or  implied  surrender  or  release  of  the  inferior  estate  : 
"In  the  common  cases  of  merger  of  estates  for  life  or  years,  by  uniting 
with  the  inheritance,  the  particular  tenant  hath  the  sole  interest  in  him, 
and  hath  full  power  to  defeat,  destroy  or  surrender  them  to  him  that  hath 
the  reversion;  therefore,  when  such  an  estate  unites  with  the  reversion  in 
fee,  the  law  considers  it  in  the  light  of  a  virtual  surrender  of  the  inferior 
estate."  If  the  superior  estate  be  released  or  conveyed  to  the  tenant  of 
the  particular  estate,  the  same  effect  takes  place  :  the  party  is  presumed 


186  SOUTH   CAROLINA   EQUITY   REPORTS.  [*271 

to  surrender  to  himself.  Now  the  possibility  which  remains  in  the  donor, 
after  the  grant  of  a  fee  simple  conditional,  is,  certainly,  in  its  nature, 
capable  of  being  surrendered  or  released,  though  not  of  being  granted  or 
assigned.  As  is  said  by  Lord  Hardwicke,  in  Wright  v.  Wright,  1  Yes. 
411,  in  reference  to  the  case  before  him,  "  This  is  still,  in  notion  of  law, 
a  possibility  ;  which,  though  the  law  will  not  permit  to  be  granted  or 
devised,  still  it  may  be  released,  as  all  sorts  of  contingencies  may,  to  the 
owner  of  the  land."  If  a  party  grant  a  fee  conditional,  and  by  the  same 
deed  limit  the  remainder  to  the  donor,  I  suppose  this  is  in  effect  a  grant 
of  the  absolute  fee  simple,  though  the  limitation  of  the  remainder  to  an- 
other would  have  been  void.  It  is  a  grant  of  the  fee  conditional, 
*9'79'l  *^i^d  a  release  of  the  possibility  of  reverter.  I  suppose  it  cannot 
-'  be  doubted,  but  that  if  John  Chaplin,  the  elder,  had  conveyed  a 
fee  simple  conditional  in  this  land,  to  his  son,  by  deed,  in  his  life  time, 
and  the  son  had  reconveyed  to  his  father,  the  father  would  have  had  an 
absolute  fee  simple,  according  to  the  authority  cited  from  Coke.  This 
would  have  been  a  merger.  So,  if  after  conveying  to  his  son  by  deed, 
the  father  had  released  to  him  his  possibility  of  reverter,  I  suppose  it  can 
be  as  little  doubted  that  the  son  would  have  had  an  absolute  fee  simple. 
But  I  do  not  perceive  that  it  can  make  any  difference,  that,  instead  of 
taking  by  the  release  of  his  father,  the  same  right  of  reverter  was  cast 
upon  him  by  the  operation  of  law. 

I  said  the  same  right  was  cast  upon  him  by  operation  of  law  ;  for  such, 
I  think,  must  be  the  conclusion.  When  Cruise,  in  a  passage  before  cited, 
says,  that  "  where  a  person  entitled  to  an  estate,  in  remainder  or  reversion, 
expectant  on  a  freehold  estate,  dies  during  the  continuance  of  the  partic- 
ular estate,  the  remainder  or  reversion  does  not  descend  to  his  heir,"  it  is 
plain,  from  the  sequal  of  the  chapter,  that  his  words  must  be  taken  in  a 
qualified  sense.  He  means  that  it  does  not  descend  to  and  vest  in  the 
heir,  so  as  to  make  him  a  new  stock  of  inheritance,  and  capable  of  trans- 
mitting to  his  heir ;  but  that  the  person  who  takes  after  the  determina- 
tion of  the  particular  estate,  must  take  as  the  heir  of  the  first  purchaser. 
The  latter  part  of  the  chapter  is  employed  in  showing,  that  when  the 
heir  of  the  first  purchaser  of  the  remainder  or  reversion,  exercises  an  act 
of  ownership  over  it,  he  thereby  constitutes  himself  a  new  stock  of  inheri- 
tance, and  capable  of  transmitting.  He  cites  particularly  the  case  of 
Stringer  v.  'New,  9  Mod.  363,  where  a  person,  who  was  tenant  for  life, 
with  remainder  in  fee,  after  estates  tail  to  the  right  heirs  of  his  father, 
whose  heir  he  was,  conveyed  the  estate  to  trustees  for  payment  of  his 
debts  ;  this  was  held  to  be  such  an  act  of  ownership  as  made  him  a  new 
stock  of  inheritance.  Lord  Hardwicke  says,  speaking  of  the  lease 
and  release,  "  It  likewise  passed  the  reversion  in  fee ;  for,  as  he  was  right 
heir  of  his  father,  he  had  a  reversion  to  grant ;  though  it  would  descend 
5^ghq-|  to  the  right  heirs  of  his  father,  without  any  such  ^alteration."  It 
-^  was  never  doubted,  I  imagine,  if  a  person  grants  an  estate  tail, 
with  reversion  to  himself,  and  dies,  his  heir  at  law  may  grant  or  release 
the  reversion  ;  and  so  any  intermediate  heir,  if  there  should  be  any  before 
the  termination  of  the  estate  tail.  Preston  says  expressly,  after  speaking 
of  fees  determinable,  "  On  these  instances,  and  indeed,  on  all  limitations 
which  can  be  ranked  under  this  class,  it  is  observable  that  the  reversion 
or  remainder  expectant  on  these  estates,  or  the  possibility  of  reversion, 


*273]  CHARLESTON,    APRIL,    1833.  187 

must  remain  in  some  person  ;  and  that  a  release  or  other  proper  assu- 
rance from  that  person,  will  give  to  this  estate  the  quality  of  a  sim])lc  and 
absolute  fee." — 1  Preston  on  Estates,  440,  441.  If  this  fee  conditional 
had  been  given  to  another  person,  by  the  will  of  John  Chaplin,  the  elder, 
it  would  hardly  have  been  doubted  but  that  his  sou  and  heir-at-law  might 
have  released  the  possibility  of  reversion.  He  could  not  release  to  him- 
self, however,  and  therefore  it  is  that  the  law  operates  a  merger  of  his 
estate.  It  adds  some  strength  to  these  views,  that  it  is  only  by  construc- 
tion from  the  words  of  the  statute  de  donis,  that  estates  tail  are  exempted 
from  being  liable  to  merge  in  the  fee  when  the  tenant  in  tail  in  possession 
is  also  entitled  to  the  reversion.  1  Cruise,  92;  2  Blac.  Com.  17Y,  178; 
3  Preston's  Conveyancing,  342.  It  is  in  favor  of  the  issue,  that  an  estate 
tail  is  privileged  from  merger,  and  therefore  its  exemption  continues  only 
so  long  as  the  privileges  of  the  statute  in  favor  of  the  issue  are  annexed 
to  that  estate.  If  therefore,  the  right  of  the  issue  be  barred,  as  by  a 
fine,  the  estate  tail  will  merge  in  the  reversion.  3  Prest.  Con.  344,  345, 
et  serf 

John  Chaplin,  the  younger,  according  to  the  views  taken  of  the  case, 
having  had  a  fee  simple  absolute,  the  sale  and  conveyance  of  his  estate 
transferred  all  his  right  to  Benjamin  Chaplin,  the  father  of  the  defendants. 
It  follows  that  the  complainants  have  no  right  in  the  land. 

It  is  therefore  ordered  and  decreed,  that  the  bill  be  dismissed. 

From  this  decree  the  plaintiffs  appealed,  and  moved  that  it  be  reversed, 
and  that  partition  of  the  lands  in  dispute,  and  an  account  of  the  rents 
and  profits,  be  awarded  to  them,  *conformably  to  the  prayer  of  r-j^oiA 
their  bill,  on  the  following  grounds  :  '- 

1.  That  an  estate  is  never  implied  by  construction  of  the  words  of  a 
will,  when  such  construction  would  defeat  the  intention  of  the  testator, 
and  lead  to  the  entire  destruction  of  his  will  :  That  to  imply  a  fee  sim- 
ple conditional  in  John  Chaplin,  the  younger,  would  if  the  character  and 
incidents  of  that  estate  be  such  as  are  assumed  by  the  decree,  not  only 
defeat  the  limitation  over  to  William  Chaplin,  but  render  the  will,  even 
as  to  John  Chaplin,  the  younger,  a  mere  nullity  ;  and,  therefore,  either 
such  estate  ought  not  to  have  been  implied,  but  the  interest  of  John 
Chaplin,  the  younger,  should  have  been  confined  to  an  estate  for  life,  and 
the  limitation  over  to  William  Chaplin  adjudged  good  byway  of  remain- 
der; or,  if  the  English  rule  relative  to  the  implying  of  estates  tail,  be 
adopted  and  applied  to  fees  simple  conditional,  then  the  foundation  of 
that  rule  ought  also  to  be  adopted,  and  the  fee  simple  conditional  of  John 
Chai)lin,  the  younger,  have  been  adjudged  a  particular  estate,  and  capa- 
ble of  supporting  the  limitation  over  to  William  Chaplin,  as  a  contingent 
remainder. 

2.  That  if  the  limitation  over  to  William  Chaplin  be  considered  an 
executory  devise,  or  conditional  limitation,  it  is  not  too  remote,  being  by 
direct  implication  from  the  words  of  the  will,  restricted  to  take  cifect 
upon  the  contingency  of  John  Chaplin,  the  younger,  dying  "  without  an 
heir  lawfully  begotten  him,"  living  at  the  period  of  his  own  decease. 

3.  That  all  possibilities  accompanied  with  an  interest  which  are  de- 
scendible, are  also  deviseable ;  and,  therefore,  the  possibility  of  reverter 
in  John  Chaplin,  being  accompanied  with  an  interest  in  the  fee,  was  capa- 
ble of  being  devised  to  his  brother,  William  Chaplin, 


188  SOUTH   CAROLINA   EQUITY   REPORTS.  [*274 

4.  That  if  the  limitation  over  to  William  Chaplin  be  void  one  very 
ground,  yet  John  Chaplin,  the  younger,  had  never  any  alienable  estate  ; 
because  he  never,  as  tenant  of  a  fee  simple  conditional,  acquired  the  right 
of  alienation  by  the  birth  of  issue  ;  and  the  reverter,  or  possibility  of  re- 
verter, being  a  contingent  interest,  did  not  descend  upon  him,  but  vested 
^.^ur-i  iu  such  persons  as  were  heirs-at-law  of  John  Chaplin,  the  *testa- 

-"  tor,  at  the  time  when  the  contingency  happened,  and  the  estate 
sprung  into  existence. 

5.  That  the  complainants  being  heirs-at-law  of  the  said  testator  to  the 
extent  of  one  moiety  of  his  estate,  at  the  time  when  the  eontingencey  did 
ha])pen,  l)y  the  death  of  John  Chaplin,  the  younger,  are  entitled  to  par- 
tition and  an  account  of  the  rents  and  profits. 

6.  That  the  same  eonculsion  results,  if  the  limitation  over  to  William 
Chapliu  be  held  good  upon  any  ground  ;  for  in  any  case,  the  limitation 
was  of  contingent  interest,  and  no  estate  vested  until  the  contingency 
happened  ;  and  the  complainants  were,  at  that  time,  heirs-at-law  of 
William  Chaplin,  in  like  manner  as  they  were  heirs-at-law  of  John 
Chaplin  the  elder. 

7.  That  the  decree  is,  iu  other  respects,  contrary  to  the  rules  of  Law 
and  Equity. 

These  grounds  were  elaborately  argued  by  Bailey  &  Pettirp-u,  for  the 
ap])ellants,  who  cited  and  commented  on  the  following  authorities  ; 
Bedon  v.  Bedon,  2  Bailey,  2ol  ;  G  Cruise,  tit.  38,  chap.  12  ;  Porter  v. 
Bradley,  3  Term  Rep.  143  ;  Forth  v.  Chapman,  1  Pr.  Wras.  G63  ;  Reed 
V.  Snell,  2  Atk.  646;  Fearne  (liutler's  Ed.)  471;  7  T.  R.  720;  1  H. 
Black.  30;  1  Cruise,  70;  Fearne,  561;  7  Cranch,  469;  3  Ves.  & 
Beames,  69  ;  Co.  Lit.  n.  338  (o)  ;  2  Black.  Com.  177  ;  Fearne,  366  ;  3 
T.  R.  88;  Bracton,  19;  1  Coke's  Rep.  66;  Plunket  v.  Ilolmes,  Lev. 
11  ;  9  Mod.  147  ;  3  Saunders,  382  (a)  note  1 ;  2  Wilson,  29. 

Grimke,  contra,  referred  to  and  commented  on  the  following  authori- 
ties ;  Plow.  242  ;  3  Preston,  492  ;  5  Jacob  Law  Die.  444  ;  2  Con. 
Rep.  94;  3  Black.  Com.  30;  2  Brest.  472;  11  Vin.  466,  6  case; 
Cruger  v.  Hey  ward,  2  Eq.  Rep.  112  ; 

O'Neall,  J.  I  agree  with  the  Chancellor,  that  the  will  of  Benjamin 
Chaplin,  the  elder,  of  St.  Helena  Parish,  was  sufficiently  attested  to  pass 
real  estate,  and  that  under  it  John  Chaplin,  the  elder,  took  an  estate  in 
fee  simple,  determinable  on  his  dying  under  the  age  of  twenty-one  years 
without  issue.  This  position  was  settled  in  the  case  of  Scanlan  v. 
Porter,  1  Bail.  427. 

*2761  *Upon  the  other  parts  of  the  case,  I  propose  to  consider,  dis- 
-'  cuss  and  decide,  First,  the  doctrine  upon  which  the  decree  is 
based,  that  a  fee  conditional  in  the  testator's  heir  is  merged  in  the  possi- 
bility of  reverter,  which  it  presumes  to  be  cast  by  descent  upon  him  ; 
Secondly,  the  estate  which  John  Chaplin  the  younger  took  under  the 
will  of  his  father,  John  Chaplin  the  elder. 

1.  Merger  is  defined  to  be,  whenever  a  greater  estate  and  a  less 
coincide  and  meet  in  one  and  the  same  person  without  any  intermediate 
estate,  whereby  the  less  is  immediately  annihilated,  or  is  said  to  be 
merged,  that  is,  sunk,  or  drowned  in  the  greater,  3  Co.  Lit.  (by  Thomas, 


*276] 


CHARLESTON,    APRIL,    1833.  159 


Am.  Ed.)  655,  338  (a)  note  K.  Taking  this  definition,  it  will  be  neces- 
sary to  ascertain,  1st,  the  nature  and  extent  of  an  estate  of  fee  con- 
ditional ;  2d,  of  the  possibility  of  reverter.  It  seems  to  be  agreed  by 
all  the  books  that  a  fee  conditional  is  a  fee  simple.  Some  of  them  say 
it  becomes  so  for  certain  purposes,  upon  the  birth  of  issue,  and  others, 
that  it  is  so  before  issue  born.  The  latter  is  I  think  the  better  opinion  ; 
the  estate  is  defeated  if  the  tenant  dies  \vi  hout  heirs  capable  of  taking 
per  formam  doni ;  but  as  long  as  he  lives,  the  possibility  of  issue  pre- 
vents his  estate  from  being  cut  down  from  a  fee  simple  to  a  less  estate. 
If  he  alienes  after  issue  is  born,  they  cannot  defeat  his  alienation  ;  for 
they  must  take  as  his  heirs  or  not  at  all,  and  hence  they  cannot  dispute 
his  feofment.  Littleton  says,  "a  man  cannot  have  a  more  large  or 
greater  estate  of  inheritance  than  a  fee  simple."  Upon  which  Lord  Coke 
remarks,  "  this  doth  extend  as  well  to  fees  simple,  conditional  and 
qualified,  as  to  fee  simples  pure  and  absolute.  For  our  author 
speaketh  of  the  arapleness  and  greatness  of  the  estate  and  not  of  the 
perdureableness  of  the  same  ;  and  he  that  hath  a  fee  simple  conditional 
or  qualified,  hath  as  ample  and  great  an  estate  as  he  that  hath  a  fee 
sim[)le  absolute  ;  so  as  the  diversity  appeareth  between  the  quantity 
and  quality  of  the  estate."  1  Co.  Lit.  (by  Thomas,  Am.  Ed.)  583, 
18  (a;.  From  this  it  would  seem,  that  the  only  difference  between 
the  two  estates,  is  as  to  the  possibility  of  duration,  but  that  as  to 
quantity  they  are  the  same.  The  fee  is  in  the  tenant  in  fee  conditional, 
subject  to  be  divested  on  his  death  without  heirs  *of  his  body  ;  r^.-)Hh 
but  it  is  an  estate  which  descends  from  him  to  the  heirs  of  his  L 
body.  The  same  doctrine  is  repeated  in  Plowden  :  in  the  argument  of 
the  Sergeants,  it  is  said,  and  not  denied,  "  And  as  to  the  common  law 
before  the  statute,  there  was  but  then  one  estate  of  inheritance,  and  that 
was  a  fee  simple,  but  these  fee  simple  estates  were  in  two  manners,  the 
one  a  fee  simple  absolute,  the  other  conditional.  The  fee  simple  absolute 
was,  when  land  was  given  to  a  man  and  to  his  heirs  ;  the  other,  to  the 
heirs  of  his  body,  which  was  also  a  fee  simple,  but  in  this  last  estate 
there  was  a  condition  annexed  to  it,  that  if  he  died  without  heirs,  the 
land  should  revert  to  the  donor."  Plow.  235.  Dyer,  J.,  speaking  of 
the  fee  conditional,  says,  "  But  (as  I  take  it)  it  was  a  fee  simple  presently 
before  issue  ;  but  the  having  of  issue  made  it  more  full  and  perfect  than 
it  was  before."  Plow.  250.  From  these  authorities,  it  seems  to  be 
clear,  that  the  whole  estate  is  in  the  tenant  in  fee  conditional,  and  that 
no  estate  is  left  in  the  grantor.  In  other  words,  the  tenant  has  a  fee 
determinable  upon  his  dying  without  leaving  heirs  of  his  body  ;  and 
dying — leaving  heirs  of  his  body — descendible  per  formam  doni,  and 
not  generally.  This  view  is  sustained  by  1  Co.  Litt.  527,  22  a.,  and  2 
Co.  Litt.  22  141  b.  note  M.  This  brings  us  to  inquire,  what  is  the 
possibility  of  reverter  ?  Is  it  an  estate  ?  I  think  not.  For  it  has 
nothing  like  an  estate  about  it.— It  is  neither  a  present  nor  future  right 
It  is  a  mere  possibility.— Upon  the  happening  of  a  condition  the  right 
may  arise ;  but  until  then  it  is  nothing  but  the  mere  remembrance  of  a 
condition  upon  which  a  present  estate  may  be  defeated,  and  a  future  one 
arise  in  any  one  who  may  be  in  esse  and  claim  as  heir  to  the  donor,  la 
the  argument  of  Anthony  Brown,  one  of  the  judges  in  C.  B.  in  the  case 
of  Willion  vs.  Berkley,  speaking  of  the  reversion  under  the  stat.  de  dams 


190  SOUTH   CAROLINA   EQUITY   REPORTS.  [*277 

conditionalibus,  it  is  said,  "  For  although  the  land  should  revert  to  the 
donor,  before  the  act,  this  is  no  proof  that  he  had  a  reversion,  for  an 
absolute  fee  simple  shall  escheat  to  the  lord  at  this  day,  and  yet  the 
lord  has  no  reversion.  So  the  reverter  of  the  land  to  the  donor  upon 
condition  in  law,  does  not  prove  that  the  donor  had  a  reversion  ;  for 
^„_o-i  indeed  *he  had  no  reversion,  but  the  donee  had  the  fee  simple, 
-J  and  consequently  the  whole  estate."  Plowd.  247.  This  opinion 
of  Brown,  (who  is  described  by  Plowden,  at  page  356,  to  have  been 
a  judge  of  profound  learning  and  great  eloquence,)  contains  the  sub- 
stance of  all  the  learning  on  the  subject,  and  shows  most  clearly  that 
the  possibilty  of  reverter  is  not  an  estate.  It  is,  as  he  intimates,  more 
like  an  escheat  in  possibility  than  any  thing  else.  Land  may  escheat 
for  the  want  of  heirs  in  the  tenant  i;i  fee  ;  but  this  possibility  is  no 
estate.  So  land  may  revert  to  the  donor,  on  the  failure  of  heirs  of  the 
body  of  the  tenant  in  fee  conditional  ;  but  until  it  occurs,  there  is 
neither  right  nor  possession,  to  be  holden  or  inherited.  It  however  is 
said,  it  can  be  released.  This  is  true,  and  yet  it  does  not  follow  that  it  is 
an  estate.  A  condition,  as  was  very  properly  said  in  the  argument,  may 
be  released,  and  this  is  exactly  what  is  done,  when  the  possibility  of 
reverter  is  released.  The  condition  upon  which  the  land  is  to  revert  to 
the  donor,  is  destroyed. 

If  these  views  be  correct  as  to  the  nature  of  the  estate  of  the  fee  con- 
ditional and  of  the  possibility  of  reverter,  there  can  be  no  such  thing  as 
the  merger  of  the  one  in  the  other.  For  the  fee  conditional  during  its 
continuance  is  the  entire  fee  simple  estate,  and  the  possibility  of  reverter 
is  nothing  but  a  mere  possibility,  which  may  or  may  not  become  an 
estate  in  the  donor.  But  the  doctrine  of  merger  is  put  upon  the  footing 
of  an  implied  surrender,  and  can  therefore  exist  in  no  case  in  which  the 
actual  surrender  would  not  be  lawful.  Now,  I  take  upon  me  to  say  in 
opposition  to  the  opinion  of  the  Chancellor,  for  which  I  entertain  the 
highest  respect,  that  there  could  be  no  surrender  by  the  tenant  of  the 
fee  conditional,  to  him,  who  has  the  possibilty  of  reverter.  He  might 
after  issue  born  convey  it  to  him,  and  his  conveyance  would  carry  the 
fee,  because  he  has  the  whole  estate,  and  may  grant  it.  Surrender  is  de- 
fined to  be,  "  a  yielding  up  an  estate  for  life,  or  years,  to  him  that  hath 
an  immediate  estate  in  reversion  or  remainder,  wherein  the  estate  for  life 
or  years,  may  drown  by  mutual  agreement  between  them."  2  Co.  Litt. 
(Am.  Ed.)  648.  Upon  this  the  editor  remarks  in  note  (B.)  "  To 
make  a  surrender  *good,  the  person  who  surrenders  must  be 
in  possession,  and  the  person  to  whom  the  surrender  is  made, 
must  have  a  greater  estate  immediately  in  reversion  or  remainder,  in 
which  the  estate  surrendered  may  merge  "  The  objections  arising  out 
of  this  law  of  surrender,  as  applied  to  a  surrender  by  tenant  of  the  fee  con- 
ditional to  him  who  has  the  possibility  of  reverter,  are — 1st.  The  estate  to 
be  surrendered  is  the  whole  fee,  and  that  to  which  it  is  to  be  surrendered 
is  no  estate  at  all. — 2d.  The  person  to  whom  the  fee  conditional  is  to  be 
surrendered,  has  no  immediate  estate  either  in  reversion  or  remainder. 
For  whatever  may  be  his  interest,  it  is  only  to  take  eifect  and  commence 
after  the  death  of  the  tenant  in  fee  conditional  without  issue.  These 
objections  it  appears  to  me  conclude  the  question,  so  as  not  to  admit  of 
a  doubt.     But  in  2  Co.  Litt.  651,  it  is  said  "  Littleton  putteth  his  case 


*279] 


*279]  CHARLESTON,   APRIL,    1833.  191 

of  surrender  of  an  estate  in  possession,  for  a  right  cannot  be  surrendered." 
Tiie  possibility  of  a  reverter  is  a  mere  right,  at  most,  and  if  it  could  not 
be  tlie  subject  of  surrender,  it  cannot  be  of  grant,  devise  or  inheritance. 
For  nothing  can  be  surrendered,  which  cannot  be  conveyed.  The  possi- 
bility of  reverter  is  this  mere  floating  right  of  possibility. — It  cannot  be 
any  thing  with  which  an  estate  can  unite.  But  the  doctrine  of  merger 
cannot  exist,  so  as  to  merge  the  fee  conditional  in  the  heir-at-law,  in  the 
possibility  of  reverter,  which,  it  is  said,  the  law  also  casts  on  him.  To 
examine  this  as  it  should  be,  it  is  necessary  to  be  satisfied,  first,  whether 
there  is  any  such  thing  as  a  descent  cast  of  the  possibility  of  reverter.  We 
have  seen  that  it  is  no  estate,  and  unless  it  is,  it  cannot  be  inherited. 
The  possibility  of  escheat  to  the  lord  paramount,  in  England,  never  was 
supposed  to  be  inheritable.  It  is  an  incident  of  the  estate  granted,  and 
upon  failure  of  heirs,  the  land  re-vests  in  the  lord  upon  office  found.  In 
the  fee  conditional,  this  land  reverts  and  re-vests  in  the  donor  or  his  heirs, 
the  moment  there  is  a  failure  of  heirs  of  his  body,  by  operation  of  law. 
Until  this  occurs,  there  is  nothing  to  inherit.  If  it  is  inheritable,  then  it 
may  be  devised  ;  for,  whatever  is  the  subject  of  inheritance,  is  the  subject 
of  devise.  If  that  is  so,  the  devise  over  to  William  is  a  devise  *of  r*28o 
the  possibility  of  reverter,  and  it  would  not  have  descended  to  ^  "^ 
John,  the  heir  and  tenant  in  fee  conditional. — But  it  cannot  be  devised. 
For  an  executory  devise  over,  after  a  fee  conditional,  is  too  remote  and 
cannot  take  effect,  unless  it  be  acccompanied  with  such  words  as  will  re- 
strict the  failure  of  the  heirs  of  the  body,  to  a  dying  without  leaving 
issue,  at  the  death  of  the  first  taker.  Mazyck  v.  Yanderhorst,  decided 
February  Term,  1828,  at  this  place,  If  it  cannot  be  devised,  it  cannot 
be  inherited,  seems  to  be  the  necessary  consequence. 

Admit  the  doctrine  of  merger,  as  contended  for  in  this  case,  and  it  de- 
stroys the  estate  of  free  conditional,  whenever  it  is  devised  to  the  testa- 
tator's  heir  at  law.  Such  could  not  have  been  the  understanding  of 
Bracton,  Fleta  and  all  the  early  sages  of  law,  when  they  give  instances  of 
fees  conditional  in  the  eldest  son.  If  the  doctrine  of  merger  is  correct, 
they  must  have  known  that  this  made  the  estate  a  fee  simple  absolute, 
by  the  union  of  the  conditional  fee  and  the  possibility  of  reverter.  Their 
silence  upon  such  a  doctrine,  is  the  strongest  evidence  that  no  such  union 

could  take  place.     The  case  of  Goodright  v. 2  Wils.  29,  is  a  strong 

and  direct  authority  against  the  doctrine  of  merger.  The  testator,  George 
Paynter,  devised  to  his  son,  George  Paynter,  in  the  following  words,  "I give 
and  devise  the  same  copyhold  and  freehold,  hereditament  and  premises,  unto 
my  said  son,  George  Payner,  his  heirs  and  assigns  forever  ;  but  if  he,  ray 
said  son,  George  Paynter,  shall  happen  to  die  before  he  shall  attain  his 
said  age  of  twenty-one  years,  leaving  no  issue  living  at  the  time  of  his 
death,  then  I  give  and  devise  the  said  premises  unto  my  said  mother, 
Catharine  Paynter,  and  to  her  heirs  and  assigns  forever."  George 
Paynter,  the  son  and  devisee,  survived  his  grandmother,  who  was  entitled 
to  the  estate  in  remainder  by  way  of  executory  devise  ;  he  was  her  heir-at- 
law— he  died  before  attaining  the  age  of  twenty-one  years  and  without 
leaving  issue.  It  was  held  by  Willis,  Clive  and  Birch,  that  his  csta  e  did 
not  merge  in  the  executory  devise  to  his  grandmother  on  her  death  and 
the  descent  cast  on  him  as  her  heir-at-law,  but  that  the  estates  were  dis- 


192  SOUTH   CAROLINA   EQUITY   REPORTS.  [*28l 

^„„,  -,  tinct — liis  *determinable  upon  a  contingency  not  yet  happened,  and 
-•  hers  purely  contingent  and  depending  upon  the  contingency  on 
which  his  estate  was  to  he  defeated,  and  that  upon  his  death  without  heirs 
it  descended  to  her  heirs  then  living,  and  not  his.  If  merger  of  an  estate 
depending  upon  a  condition  as  to  its  duration,  in  the  descent  of  another 
estate,  which  depended  on  the  determination  of  that  estate  as  its  com- 
mencement, ever  could  apply,  it  would  have  been  allowed  in  that  case. 
It  was  however  there  overruled,  as  it  must  be  here. 

2.  This  brings  me  to  the  consideration  of  the  second  part  of  the  case. 
What  estate  did  John  Chaplin,  the  younger,  take  under  the  will  of  his 
father,  John  Chaplin  the  elder  ?  The  words  of  the  devise,  are,  "  I  give 
and  becpieath  to  my  dear  and  loving  son,  John  Chaplin,  my  tract  of  land 
on  Port  Royal  Island  lying  on  Jericho  Creek,  but  if  he  should  die  without 
an  heir  lawfully  begotton  by  him,  then  I  will  and  devise,  that  the  said 
tract  of  land  be  given  to  my  brother,  William  Chaplin. " 

The  first  thing  necessary  to  be  disposed  of,  is  the  limitation  over,  by 
way  of  executory  devise,  in  favor  of  William.  If  that  be  good,  then  it 
might  have  a  material  effect  on  the  decision  of  the  main  question.  But 
if  it  be  too  remote,  as  I  think  it  is,  then  we  shall  disembarrass  at  once 
the  case  of  a  question  which  might  otherwise  interpose  great  difliculties 
to  a  right  conclusion  on  the  nature  of  the  estate  to  John  Chaplin.  On 
this  part  of  the  case,  I  am  spared  a  great  deal  of  labor,  by  the  case  of 
Mazyck  v.  Vanderhorst.  (a)  The  words  of  the  limitation  over  there,  were, 
"provided  nevertheless,  that  should  my  said  daughter,  Elizabeth  Collins, 
depart  this  life  leaving  no  lawful  heir  or  heirs  of  her  body,  then  my 
will  is  that  the  above  mentioned  remainder  of  my  estate,  both  real  and 
•j)ersonal,  I  give  unto  my  daughter  Mary  Woodbury's  eldest  son,  that  shall 
be  named  Josiah  Collins."  This  Court  held,  "  that  thismust  be  regarded 
as  a  limitation  over  after  an  indefinite  failure  of  issue,  and  therefore  too 
remote  and  void."  Tliat  decision  concludes  the  question  now  made,  and 
*.9QC)-|  on  *its  authority,  the  limitation  over  here  must  be  also  adjudged 
"'-'  to  be  remote,  and  void. 
Is  the  estate  devised  to  John  Chaplin,  a  fee  conditional  at  the  com- 
mon law  ?  It  is  admitted,  that  on  the  face  of  the  devise  it  is  not  to  him 
and  the  heirs  of  his  body.  But  it  is  said,  that  the  words,  "  but  if  he 
should  die  without  an  heir  lawfully  begotten  by  him,  then  over  to  Wil- 
liam," authorize  us  to  imply  a  fee  conditional.  I  admit,  as  I  did  in  the 
case  of  Bedon  v.  Bedon,  2  Bail.  246,  that  these  words  would,  in  England 
have  raised  an  estate  tail  by  implication.  But  I  deny  that  the  same 
words  will  imply  an  estate  in  fee  conditional.  Show  me  a  case,  if  it  is 
to  be  found,  in  which  such  an  implication  has  been  made.  None  can  be 
found.  The  estate  in  fee  conditional  stands  at  common  law,  upon  the 
words  "  heirs  of  the  body."  We  are  then  unfettered  by  pi-ecedents  on 
the  subject,  and  we  are  free  to  adopt  or  reject  the  implication,  as  may  best 
correspond  with  the  analogies  of  the  law  of  this  State.  The  cases  under 
the  statute  de  donis  condUionalihua,  in  which  the  Judges  have,  from  such 
words,  implied  an  estate  tail,  do  not  ex  vi  termini  compel  us  to  adopt 
them  as  authorities  for  the  implication  of  a  fee  conditional.  There  the 
implication  has  been  resorted  to,  to  favor  the  intention  of  the  testator — 

{a)  Not  reported. 


*282]  CHARLESTON,   APRIL,   1833.  193 

here,  nine  times  out  of  ten,  it  would  be  resorted  to,  to  defeat  it.  The 
ease  of  Bedon  v.  Bedon  has  settled  the  rule,  that  the  same  words  which 
in  England,  will  imply  a  fee  tail,  will  not  necessarily  imply  a  fee  condi- 
tional here  ;  and  I  am  prepared  now  to  go  one  step  further,  and  to  say, 
that  in  no  case  shall  a  fee  conditional  be  raised  by  implication.  I  regard 
the  whole  doctrine  of  implied  estates,  where  no  words  are  used  giving 
directly  to,  the  issue,  as  an  interpolation  of  the  will  of  the  Court,  for  the 
will  of  the  testator. 

The  question,  of  what  estate  does  the  devisee  take  under  a  will,  is 
always,  what  estate  do  the  words  legally  inform  us  the  testator  intended 
he  should  take  ?  If  we  ascertain  this,  there  is  nothing  generally  to  pre- 
vent us  from  giving  it  effect,  "When  the  testator  uses  words  which  show 
an  intention  to  contravene  the  law,  his  intention  cannot*  so  far  pre-  r^Qoo 
vail.  This  is  the  reason  why  devises,  intended  to  create  a  perpe-  L  "^ 
tuity,  cannot  take  effect.  The  rule,  that  a  limitation  over  must  take  effect 
within  a  life  or  lives  in  being  and  twenty-one  years  and  nine  months  after, 
was  intended  to  prevent  perpetuities,  and  all  devises  are  compelled  to 
bend  to  it. 

The  devise  over  in  this  case  being  too  remote  and  void,  can  have  no 
effect  to  enlarge  or  restrict  the  estate,  unless  it  be  to  aid  us  in  giving 
construction  to  the  will,  as  to  the  estate  of  John  Chaplin.  A  devise  to  A. 
without  words  of  inheritance  or  perpetuity,  or  words  clearly  indicating  an 
intention  that  he  should  take  more  than  a  life  estate,  was  held  formerly  to 
give  only  a  life  estate.  Take  this  to  be  the  rule  applicable  to  the  will 
before  us,  and  what  estate  does  John  Chaplin  take  ?  I  answer  he  takes  a 
fee  simple  absolute.  For  the  testator  has  used  words  which,  in  legal  con- 
templation, mean  that  the  land  should  not  go  over  to  the  remainder  man, 
only  upon  an  indefinite  failure  of  issue,  and  then  that  it  should  not  revert 
to  him.  These  words  are  equivalent  to  a  grant  of  the  fee  to  him,  and  as 
much  import  a  fee  simple,  as  if  he  had  used  the  word  "  forever,"  which  is- 
a  word  of  perpetuity,  and  so  are  the  words  employed. 

But  strike  all  the  words  out  after  the  words  "  Jericho  Creek,"  for  they 
are  void  as  a  devise  and  the  devise  then  stands  simply  as  a  devise  to  John 
Chaplin  without  words  of  inheritance  or  perpetuity.  What  estate  does 
he  then  take  ?  The  act  of  1824  enacts,  that  "no  words  of  limitation  sliall. 
hereafter  be  necessary  to  convey  an  estate  in  fee  simple  by  devise,  but 
every  gift  of  land  by  devise  shall  be  con:^idered  as  a  gift  in  fee  simple,, 
unless  such  a  construction  be  inconsistent  with  the  will  of  the  testator, 
express  or  implied."  This  act  -settled  a  rule  of  construct  which  had 
been  a  vexed  question  in  our  Courts  ;  and  wills  made  long  anterior  to 
its  passage,  were  subjected  to  the  rule  established  by  it,  as  will  l>e  seen 
by  referring  to  the  cases  of  Dunlap  v.  Crawford,  2  M'C.  Ch.  171  ;  Hall  v. 
Goodwyn,  4  M'C.  412  ;  Smith  i;.  Peyton,  lb.  476  ;  and  Bedon  v.  Bedon, 
2  Bail.  231.  The  will,  in  the  case  of  Hall  v.  Goodwyn,  was  executed  I 
think,  during  or  before  the  revolutionary*  war.  The  rule  is  now  r-jt,.2^^ 
regarded  as  a  settled  rule  of  construction — settled  by  the  Legisla- 
ture and  the  Courts,  and  is  applicable  to  all  wills,  no  matter  when  executed. 

The  case  of  Skimon  v.  M'Robcrts,  1  Wash.  Rep.  125,  shows  that  the 
Court  of  Appeals  of  Virginia  felt  themselves  bound  to  enforce  the  com 
mon  law  in  the  construction  of  a  devise  without  words  of  inheritance 
or  perpetuity  contained  in  a  will  made  before  1787-     They  seem  to  think 
Vol.  I.— 13 


104  SOUTH    CAROLINA    EQUITY    REPORTS.  [*284 

that  the  Revolution,  and  the  abolition  of  the  feudal  system  and  the  rights 
of  primogeniture,  might  for  the  future  relieve  them  from  this  necessity 
and  enable  them  to  give  effect  to  the  intentions  of  testators.  That  deci- 
sion cannot  affect  this  case  or  the  rule  which  has  been  adopted  under 
and  since  the  act  of  1824.  The  common  law  rule  was  adopted  in  Hall 
V.  Goodwyn,  2  N.  &  M'C.  383,  without  any  reference  to  the  effect  of  the 
act  abolishing  the  rights  of  primogeniture,  and  the  same  case,  4  M'C. 
442,  and  Smith  v.  Peyton,  when  the  common  law  rule  was  reversed  and 
the  rule  of  the  act  of  1824  was  adopted,  put  the  decision  on  the  ground, 
that  the  act  was  declaratory  of  what  the  law  was,  and  that  it  therefore 
operated  retrospectively  as  well  as  prospectively. 

There  is  nothing  in  the  will,  either  express  or  implied,  which  is  incon- 
sistent with  the  construction,  that  John  Chaplin  took  a  fee  simple,  and 
this  was,  I  think,  the  nature  and  extent  of  his  estate  under  the  will  of  his 
father.  The  purchaser  at  the  sheriff's  sale  purchased  therefore  the  fee 
simple,  and  the  defendants  claiming  under  him  are  entitled  to  the  land. 
The  complainants'  bill  was  properly  dismissed,  and  the  Chancellor's  de- 
cree is  affirmed. 

Johnson  and  Earle,  Js.,  concurred. 


CASES    IN   CHANCERY 

ARGUED     AND     DETERMINED     IN     THE 

COURT  OF  APPEALS  OF   SOUTH  CAROLINA. 

(Columbia — |lTajT  mxH  I'unf,  1833. 


JUDGES  PRESENT. 


Hon.  DAYID  JOHNSON,  Presiding  Judge. 
Hon.  J.  B.  O'NEALL.      J     Hon.  WILLIAM  HARPER. 


James  Poag,  Executor  of  John  Muldoon,  deceased,  v.  William  Poag. 

A  priviite  agent  or  assignee  is  not  entitled  to  commissions,  unless  they  are  stipulated 

for  ill  the  contract  creating  the  agency.  [*287] 
On  a  bill  against  an  agent  for  an  account,  bis  books  are  not  admissible  to  prove  the 

sale  and  delivery  of  provisions  and  necessaries  to  the  principal    [*287] 
Although  the  agent  in  such  case  may  be  considered  a  trustee,  and  his  tiansactions 

regarded  with  jealousy,  yet  he  will  be  entitled  to  credit  for  notes  on  his  principal, 
.payable  to  himself  during  his  agency,  without  showing  their  consideration,  unless 

there  be  some  evidence  to  impugn  them    [*287] 

John  Muldoon,  the  plaintiflfs  testator,  being  a  man  of  weak  under- 
standing, and  incapable  of  transacting  his  own  business,  gave  the 
defendant  a  general  power  of  attorney  to  act  for  him  Under  this 
power  the  defendant  made  a  settlement  with  a  former  agent,  took  posses- 
sion of  Muldoon's  estate,  and  for  several  years  managed  all  his  affairs, 
and  during  this  time  occasionally  supplied  him  with  provisions  and 
*other  necessaries.  On  Muldoon's  death,  his  executor  filed  this  r.-|:286 
bill  for  an  account. 

On  reference  before  the  Commissioner,  the  defendant  claimed  commis- 
sions on  the  settlement  with  the  former  agent,  which  the  Commissioner 
refused  to  allow.  He  also  produced  and  proved  the  execution  of  sundry 
notes  with  the  testator's  mark  to  them,  payable  to  himself,  for  wliicli  lie 
claimed  credit,  but  he  refused  to  prove  their  consideration.  The  Com- 
missioner refused  to  credit  him  with  these  notes,  on  the  ground,  that  it 
was  incumbent  on  him  under  the  circumstances  to  show  the  consideration 
for  which  they  were  given.  The  defendant  then  offered  in  cvidciice_  an 
account  book,  in  order  to  prove  the  delivery  of  certain  necessaries,  which, 
as  he  alleged,  were  there  charged.     This  evidence  was  rejected. 

The  Commissioner  having  made  his  report  on  the  accouiits,  the  defend 
ant  filed  exceptions  to  it,  charging  error  in  the  above  particulars. 


196  SOUTH    CAROLINA   EQUITY    REPORTS.  [*2S6 

Chancellor  Johnston,  before  whom  the  exceptions  were  argued,  at 
York,  sustained  the  report,  and  the  defendant  appealed  on  the  grounds 
taken  below. 

Williams,  for  the  appellant,  in  support  of  the  grounds  taken,  cited  and 
relied  on  Sinclair  v.  Kiddle,  decided  at  the  last  Term,  and  1  Mad.  110. 

Hill,  contra,  insisted,  that  commissions  could  not  be  allowed  on  the 
whole  amount  which  had  been  settled  between  the  two  agents,  when  but 
a  small  sum  fell  due  thereon,  and  was  in  fact  received  by  the  defendant. 
That,  as  regards  the  notes,  the  defendant  was  a  trustee,  and  not  per- 
mitted to  contract  with  his  cestui  que  trust ;  and  all  contracts  between 
them  should  be  avoided,  unless  the  trustee  shows  that  he  has  dealt  fairly  ; 
and  the  circumstances  we'll  justified  the  Commissioner  in  rejecting  the 
notes.  1  M'C.  Ch.  389  ;  4  Eq.  Rep.  103  ;  1  Ves.  418  ;  2  John.  Ch. 
Rep.  252  ;  6  Yes.  631 ;  2  Sch.  &  Lef.  492.  The  account  book  was 
properly  rejected,  according  to  the  common  rules  of  evidence. 

5,j^-^QH.-i  *Harper,  J.  The  first  claim  on  the  part  of  defendant  is,  to  be 
*-'  allowed  commissions  on  the  amount  received  from  a  former  agent 
on  settlement.  This  cannot  be  allowed.  Guardians  and  trustees  having 
the  charge  and  custody  of  the  estates  of  infants  and  minors,  are  allowed 
commissions  by  the  Act 'of  1745  ;  1  Br.  Dig.  892,  Executors  are  allowed 
them  by  the  executor's  act,  and  factors  and  some  other  commercial  agents 
have  them  by  the  usages  of  trade.  But  a  private  agent  or  assignee  is 
not  entitled  to  them  unless  they  are  stipulated  for  in  the  act  or  contract 
by  which  the  agency  is  created.     To  this  efiect  was  the  decision  in  the 

case  of decided  by  this  Court  in  Charleston,  and  that  of 

Muckenfuss  v.  Heath,  ante,  182,  decided  at  the  same  place  during  the 
last  sitting  of  this  Court. 

The  next  question  relates  to  the  admissibility  of  defendant's  book,  to 
establish  an  account  for  articles  sold  and  delivered  to  his  principal, 
Muldoon.  This  certainly  does  not  come  under  the  general  rule  allowing 
merchants',  shopkeepers'  and  tradesmens'  books  to  be  evidence.  It  is 
supposed  to  l)e  admissible  under  the  decision  in  the  case  of  Sinclair  & 
Kiddell  v.  The  administrators  of  Price,  decided  at  this  place  in  Decem- 
ber, 1832.  That  was  a  peculiar  case  depending  on  its  own  circumstances. 
There  was  a  mercantile  agency  for  the  purpose  of  selling  goods,  remitting 
the  proceeds,  &c.,  stress  was  laid  on  the  circumstance,  that  the  books 
would  have  been  evidence  for  the  principal  against  third  persons,  (which 
cannot  be  said  here)  and  the  books  were  offered  after  the  death  of  the 
agent,  who  might  have  been  able  to  produce  other  proof  if  he  had  been 
alive.     As  to  this  ground  also  the  motion  must  be  dismissed. 

We  are  of  a  different  opinion  with  respect  to  the  notes  which  were 
offered  in  evidence.  It  is  certainly  true  that  a  trustee  cannot  purchase 
of  his  cestui  c/ue  trust,  without  being  prepared  to  show  that  he  gave  a 
full  consideration,  and  did  not  unfairly  avail  himself  of  the  advantages 
afforded  by  his  character  of  trustee.  The  same  rule  is  applied  to  other 
persons,  not  being  strictly  trustees  but  standing  in  relations  of  confidence, 
as  to  agents.  But  these  persons  are  certainly  at  liberty  to  account  with 
5i..inn-|  their  principals,  and  to  take  acknowledgments*  or  vouchers  in 
-  relation  to  the  transactions  between  them.     A  note  given  is  evi- 


^288] 


COLUMBIA,    MAT,    1833.  197 


clence  of  an  account  settled  and  a  balance  ackuowledg-ed.  In  such  a 
case  as  the  present,  where  the  principal  is  shown  to  have  been  a  weak 
man,  hardly  capa'jle  of  transacting  his  own  business,  such  transactions 
are  regarded  with  jealousy,  as  in  the  instance  of  a  guardian  scttlinii-  with 
his  ward  just  after  he  comes  of  age,  and  slight  evidence  will  be  sufficient 
to  throw  the  burden  of  proof  on  the  agent.  But  I  see  no  evidence  to 
impugn  the  notes  in  this  case.  On  the  contrary  they  are  supported  by 
the  testimony  of  the  witness,  Jos.  S.  Poag,  who  proves  the  delivery  of 
various  articles  by  the  defendant  to  Muldoon,  without  being  able  to 
specify  quantities  What  conclusion  so  obvious,  as  that  on  account  of 
these  the  notes  were  given.  And  this  is  an  additional  reason  against 
admitting  the  book  to  prove  the  account.  T^otes  were  given  to  the  num- 
ber of  five,  during  the  continuance  of  defendant's  agency,  at  various 
times,  and  the  presumption  is,  that  defendant's  charges  against  his  prin- 
cipal were  included  in  these  notes.  The  motion  as  to  this  ground  of 
appeal  is  granted,  and  defendant's  third  exception  sustained. 

Johnson  and  O'Xeall,  Js',  concurred. 


Thomas  M'Meekin  v.  J.  L.  Edmonds  and  Wife,  Robert  L.  Nance, 

AND  ClOUGH  S.  MeNG. 

A  sheriff's  sale  of  a  tract  of  land  to  one  who  purchased  at  the  instance  of  the  debtor 
in  tlie  execution,  and  conveyed  to  a  trustee  for  the  benefit  of  the  debtor's  famil.y, 
under  the  circumstances  set  aside;  but  the  mother  of  the  debtor's  wife  having 
advanced  money  towards  the  purchase,  and  which  went  to  the  payment  of  his 
debts,  and  the  trustee  having  afterwards  paid  out  money  in  di-charge  of  a  mort- 
gage, to  which  the  land  was  subject  wlien  sold,  and  neither  of  them  having  Ijeon 
accessory  to  the  fraud,  the  Court  held  that  the  money  thus  advanced  should  be 
refunded,  and  that  the  land  should  stand  as  security  for  the  payment.  [*:iy:^] 
The  fraud  of  a  third  person  may  sometimes  vitiate  a  conveyance — a  party  to  the 
conveyance  shall  not  be  allowed  to  derive  any  advantage  from  such  fraud;  but  in 
setting  aside  such  a  conveyance,  the  Court  will  take  care  that  iunoceut  persons 
shall  not  suffer.  [*293] 
Equity  will  entertain  jurisdiction  to  set  aside  a  fraudulent  deed.  [•■-2^'5] 
Where  the  Court  of  Equity  by  a  decretal  order  directed  the  lesiacy  of  the  wife  for 
which  a  decree  had  been  obtained,  to  be  settled  to  her  separate  use,  kc,  according 
to  the  trusts  of  the  will,  this  is  not  a  marriage  settlement  which  need  be  recorded: 
and  a  deed  afterwards  executed  to  the  wife's  trustee,  is  not  void  because  not 
recorded  as  a  marriage  settlement.  [*295] 

The  bill  in  this  case  was  filed  to  set  aside,  as  fraudulent,  a  sale  and 
conveyance  bv  the  sheriff,  of  a  tract  of  land  of  the  defendant,  J^  L. 
Edmonds,  to  the  defendant,  C.  S  Meng  ;  and  also  a  conveyance  trom 
Meng  to  the  defendant,  R.  L.  Nance,  in  trust  for  the  use  of  Mrs.  Ed- 
monds and  her  children,  under  the  following  circumstances,  as  proved  on 

the  trial :  i        -n     r  i  l 

Mrs.  Edmonds  being  entitled  to  a  legacy,  under  the  will  ot  licr  gianu- 
father,  she  and  her  husband  instituted  proceednigs^-_in  h-qnity,   r::-.^^^ 
and  obtained    a   decree   therefor;    but  Edmonds   l)eing  largely 
indebted  and  likely  to  prove  insolvent,  the  Court  of  Equity,  by  a  decretal 


198  SOUTH    CAROLINA   EQUITY    REPORTS.  [*289 

order,  in  June,  1826,  directed  the  amount  of  Mrs.  Edmonds'  legacy  to 
be  paid  to  R.  L.  Nance,  in  trust,  to  be  laid  out  in  the  purchase  of  pro- 
perty for  the  use  of  Mrs.  Edmonds  and  her  issue,  and  for  such  other 
uses  and  under  such  limitations  as  the  will  directs.  Shortly  after,  the 
greater  part  of  Edmonds'  estate  was  sold  under  executions,  at  Newberry. 
Besides  the  property  then  sold,  he  owned  a  tract  of  land  in  Union  Dis- 
trict, which  he  had  contracted  to  one  Thomas  Clarke  for  $2,400,  $100  of 
•which  he  had  received,  and  taken  notes  for  the  balance,  and  given  his 
bond  for  titles.  On  the  sale  day  in  September,  1826,  this  land  being 
exposed  for  sale  by  the  sheriff  under  executions  in  his  oiBce,  Edmonds 
applied  to  the  defendant,  C.  S.  Meng,  who  had  been  recommended  to 
him  as  a  man  of  probity,  to  purchase  the  land  as  an  agent,  saying  that 
he  had  money  to  satisfy  all  the  executions  in  the  sheriff's  office  against 
him,  and  that  his  ol)ject  in  getting  him  (Meng)  to  purchase  the  land,  was 
to  enable  him  to  perform  the  contract  with  Clarke,  by  tendering  him 
through  the  purchaser,  sheriff's  titles.  On  this  representation,  Meng 
consented  to  act,  and  accordingly  bid  off  the  land  at  $920.  He  then 
paid  the  sheriff  $128  7.3i  in  satisfaction  of  the  executions  against 
Edmonds,  from  money  which  Edmonds  gave  him  ;  and  Edmonds  then 
gave  him  a  receipt  for  $191  2Gf,  the  balance  of  the  bid  after  satisfying 
the  executions,  and  which  would  be  coming  to  Edmonds,  but  no  money 
was  paid  ;  and  the  sheriff  executed  titles  to  Meng,  for  which  Edmonds 
paid.  After  the  titles  were  delivered,  Meng,  who  felt  no  interest  in  the 
matter,  at  the  instance  of  Edmonds  gave  a  bond  to  execute  titles  for  the 
land,  to  R.  L.  Nance,  the  trustee  of  Mrs.  Edmonds  ;  and  shortly  after- 
wards executed  a  formal  conveyance.  This  deed  has  since  been  approved 
of  by  the  Commissioner  in  Equity  for  Newberry  District,  and  accepted 
in  execution  of  the  previous  order  of  the  Court.  At  the  time  of  the 
*9Qm  sheriff's  sale  the  land  was  under  mortgage  to  one  Darby  from 
-I  *whom  Edmonds  purchased  it,  for  the  purchase-money,  the 
balance  of  which  then  due  was  $604  91.  Mr.  Nance,  the  trustee,  has 
since  paid  this  sum,  and  disencuml>ered  the  land  of  the  mortgage  lien. 

Edmonds,  in  his  answer,  states  that  he  received  no  money  from  Meng, 
and  that  he  was  of  the  opinion  that  the  mortgage  was  to  be  satisfied  out 
of  the  proceeds  of  the  sale.  Mrs.  Wadlington,  the  mother  of  Mrs. 
Edriioncls,  it  appeared,  had  advanced  $200  to  Edmonds,  to  aid  in  this 
purchase,  of  which,  however,  only  $128  1o^  were  applied  to  that 
purpose. 

Some  months  after  the  sale  of  the  land,  judgment  was  obtained  and 
execution  lodged  against  Edmonds  in  favor  of  Nancy  Hamilton,  who 
assigned  the  same  to  the  present  plaintiff  for  a  valuable  consideration. 
On  this  judgment  the  land  was  again  sold  by  the  sheriff  in  June,  1827, 
and  purchased  by  the  plaintiff;  and  in  July  following  Edmonds  was 
arrested  on  a  ca.  sa.,  and  having  rendered  in  a  schedule,  was  discharged 
under  the  Prison  Bounds'  Act,  leaving  the  plaintiffs'  judgment  wholly 
unsatisfied. 

The  case  came  to  a  hearing  before  Chancellor  DeSatjssure,  at  Union, 
June  Term,  1832 

For  the  plaintiff,  it  was  argued,  that  the  sale  was  intended  to  defraud 
creditors,  and  should  be  declared  void  ;  and  it  was  further  contended,  on 
the  authority  of  Price  v.  White,  Law  Journal,  296,  that  the  order  of  the 


*290]  COLUMBIA,  MAY,   1833.  199 

Court,  appointing  Nance  a  trustee,  and  settling  the  property  on  Mrs. 
Edmonds,  was  a  post  nuptial  settlement,  and  not  being  recorded  in  due 
time,  nor  in  the  proper  office,  was  void  as  to  creditors. 

The  Chancellor  held,  that  the  evidence  did  not  establish  fraud  in  the 
sheriff's  sale,  and  the  subsequent  conveyance  to  the  trustee  ;  that  this 
was  not  a  case  to  which  the  registry  acts  applied,  the  property  not  being 
derived  in  such  way  as  to  be  liable  for  the  husband's  debts,  unless  pro- 
tected by  a  settlement ;  but  the  decretal  order  of  the  Court  settling  the 
property  on  Mrs.  Edmonds,  is  merely  ancillary  to  the  will  which  creates 
the  trusts,  and  intended  to  give  it  effect.  He  therefore  dismissed  the  bill 
with  costs. 

From  this  decree  the  plaintiff  ajipealed,  and  moved  to  reverse  it,  for 
error  in  the  decision  of  the  Chancellor. 

*/?.  M.  Pearson,  for  the  appellant,  commented  on  the  facts,  r^gni 
which  he  insisted  shewed  a  fraudulent  intent  on  the  part  of  Ed-  L 
monds  to  screen  his  property  from  his  creditors  by  procuring  the  sheriff's 
sale  :  Miller  v.  Tolleson,  Harp.  Eq.  Rep.  145.  That  if  Mrs.  Wadling- 
ton  advanced  money,  she  did  so  without  any  contract  with  the  trustee, 
and  even  without  his  knowledge — she  could  not  recover  from  him,  and 
was  not  entitled  to  have  it  refunded  out  of  the  land,  but  stood  in  the 
relation  of  any  other  creditor  of  Edmonds,  to  whom  she  had  loaned  it :  2 
IS".  &  M'C.  75.  Nance,  the  trustee,  was  not  a  purchaser  at  the  sheriff's 
sale.  He  knew  nothing  of  it  until  some  time  afterwards,  when  he  accepted 
the  title.  Meng  was  not  his  agent,  but  Edmonds' ;  and  if  Edmonds  had 
authority  to  act  for  the  trustee  (which  does  not  appear)  he  could  not 
delegate  his  authority  to  Meng;  16  Ves,  45;  Newland,  145.  The  pur- 
chase at  sheriff's  sale,  cannot  therefore  be  regarded  as  the  act  of  the 
trustee  in  execution  of  his  trust. — That  the  land  was  sold  subject  to  the 
mortgage,  he  referred  to  4  M'C.  Rep.  33G  ;  the  overplus,  after  satisfying 
the  executions,  was  Edmonds'.  And  that  the  settlement  by  the  Court 
Avas  void,  for  want  of  being  recorded,  he  relied  on  Price  v.  White,  Law 
Journal,  296.     A.  A.  1823. 

Irhy,  for  the  defendant,  also  commented  on  the  facts,  and  contended 
that  the  evidence  did  not  make  out  such  a  case  of  fraud  as  to  justify  the 
interference  of  this  Court ;  and  that  if  the  Court  did  set  aside  the  sale,  it 
would  direct  that  the  land  should  stand  charged  with  the  money  advanced 
by  Mrs.  Wadlington  expressly  for  this  purpose,  which  went  to  satisfy  the 
executions  against  Edmonds,  and  with  the  amount  paid  by  the  trustee  ia 
discharge  of  the  mortgage;   1  Eq.  Rep.  IIT,  419. 

J.  J.  Caldwell  in  reply,  insisted  that  nothing  but  the  equity  of  re- 
demption was  sold  at  the  sheriff's  sale ;  or  more  properly  according  to 
our  law,  the  land  was  sold  subject  to  the  mortgage,  and  the  purchaser 
took  it  with  that  incumbrance.  According  to  this  view  there  remained 
of  the  purchase  money,  after  satisfying  the  executions  against  Edmonds, 
*$t91  26  of  an  overplus,  which  belonged  to  Edmonds  and  was  r:i.292 
applicable  to  his  debts.  To  this  extent,  at  least,  the  Court  should  mi- 
grant relief,  and  a  resort  to  the  laud  is  the  only  mean  of  obtaining  it. 

Harper,  J.  I  think  the  sale  by  the  sheriff  to  the  defendant,  Mong, 
must  be  regarded  as  fraudulent  so  far  as  the  defendant  Jeflerson  L. 
Edmonds  was  concerned.     The  land  was  sold  subject  to  a  mortgage  oa 


200  SOUTH    CAROLINA    EQUITY    REPORTS.  [*292 

which  $604  were  doe.     It  was  bid  off  at  $920.     The  price  then  bid  for 


it  was,  in  effect,  $1524.  Edmonds  however  gave  his  receipt  for  $791  26 
and  I  thinli  must  be  regarded  as  having  paid  so  much  of  the  price  out  of 
his  own  funds,  and  that  it  was  to  this  extent  a  voluntary  conveyance  for 
the  benefit  of  his  family.  It  is  true  that  Edmonds  states  in  liis  answer, 
that  he  and  the  bidders  at  the  sale  were  under  the  impression  that  the 
mortgage  was  to  be  paid  off  out  of  the  proceeds  of  the  sale,  and  that 
though  he  gave  his  receipt,  the  amount  was  in  fact  paid  by  the  trustee 
Nance  ;  but  the  answer  of  Edmonds  is  no  evidence  for  this  purpose ; 
there  is  no  charge  on  the  suliject  in  the  bill.  He  himself  knew  of  the 
mortgage ;  Meng  was  his  agent  for  making  the  purchase,  and  must  be 
regarded  as  having  had  notice,  and  the  conclusion  of  law  is,  that  he  pur- 
chased only  the  equity  of-  redemption,  as  we  term  it — in  fact,  the  legal 
estate  remaining  in  the  mortgagor,  taking  the  land  still  subject  to  the 
mortgage.  But  if  we  were  to  take  the  statement  of  Edmonds  for  granted, 
there  still  remains  a  portion  of  the  price  which  he  must  be  regarded  as 
having  paid.  His  receipt  to  Meng  was  for  $191  26|;  the  amount  due 
on  the  mortgage  was  $604  ;  there  was  then  $184  26  for  which  he  volun- 
tarily gave  his  receipt.  If  he  had  actually  received  the  $791  26,  it  might 
have  been  applied  to  the  benefit  of  creditors,  and  it  was  a  fraud  on  them 
that  so  mnch  of  his  property  should  be  applied  to  benefit  his  family,  and 
in  effect  himself.  Other  circumstances  seem  to  indicate  that  he  wished 
his  family  to  obtain  an  undue  advantage  at  the  expence  of  creditors.  If 
he  could  have  enforced  his  contract  with  Clarke,  (and  there  is  no  clear 
evidence  to  show  that  he  could  not)  it  would  have  been  a  much  more 
*9q£Jl  ^advantageous  sale  than  that  which  was  effected,  *and  he  seems  to 
-'  have  misrepresented  to  Meng  the  purpose  for  which  he  wished  him 
to  bid  off  the  land.  It  is  possible  he  may  have  intended  fairly ;  but  the 
law  draws  a  different  conclusion  from  the  circumstances  ;  and  though 
neither  the  trustee  nor  his  cestui  que  trust,  Mrs.  Edmonds,  may  have  had 
any  accession  to  the  fraud,  they  are  not  allowed  to  keep  an  advantage 
gained  by  the  fraud  of  another.      Huguenin  v.  Basely,  14  Yes.  273. 

It  is  not  alleged  on  any  hand,  that  either  Nance  or  his  cestui  que  trust 
have  any  accession  to  the  fraud.  The  trustee  purchased  bona  fide,  and 
for  valuable  consideration,  for  he  paid  oft'  the  mortgage.  He  may  have 
supposed  that  the  land  had  been  bid  off  for  a  nominal  price,  and  that  the 
amount  of  the  mortgage  was  the  only  consideration  to  be  paid.  In  gene- 
ral, the  title  of  a  bona  fide  purchaser  for  valuable  consideration  without 
notice  of  fraud,  is  good  both  in  law  and  ecpiity  ;  but  in  this  case  I  am  of 
opinion  that  though  the  title  of  the  trustee  was  good  at  law,  and  therefore 
the  complainant  took  nothing  by  his  purchase  at  sheriff's  sale,  yet  it  must 
be  set  aside  in  equity,  though  allowed  to  stand  as  a  security  for  what  has 
actually  been  paid.  In  the  case  of  Smith  v.  Henry,  1  Hill,  26,  decided  at 
the  last  sitting  in  this  place,  we  recognised  the  general  principle,  that  the 
fraud  of  the  grantor  alone  is  sufficient  to  vitiate  a  conveyance ;  and,  as  I 
have  said,  the  fraud  of  a  third  person  in  procuring  a  conveyance,  may 
vitiate  ;  but  in  neither  of  these  instanees,  is  such  construction  to  be  made, 
as  will  render  innocent  third  persons  sufferers.  In  general,  if  a  purchase 
be  made  bona  fide,  ?i\\(i  for  valuable  consideration,  the  Court  will  not  look 
to  the  adequacy  of  the  consideration  But  here,  as  I  have  said,  the 
whole  of  the  consideration  was  not  paid  by  the  trustee ;  part  of  it  was 


*293]  COLUMBIA,   MAY,    1833.  201 

paid  by  Edmonds  ;  though,  for  aught  that  appears,  without  tlio  trustee's 
knowledge.  If  an  insolvent  having  saved  a  thousand  dollars  in  money 
from  the  wreck  of  his  fortune,  should  go  to  a  third  person  and  say  "  if  you 
will  sell  to  my  wife's  trustee  a  tract  of  land  worth  $2,000  for  $1,000,  I 
will  privately  make  up  the  difference,"  it  is  plain  the  transaction  could 
not  stand.  Otherwise  there  would  be  no  restraint  on  fraud.  But  the 
grantees  *being  themselves  innocent,  are  not  to  be  made  sufferers,  r^k.^f,. 
The  ends  of  justice  can  only  be  answered  by  setting  aside  the  sale,  L  ^•^■* 
allowing  the  property  to  stand  as  a  security  for  what  was  actually  paid. 
But  the  sale  was  good  at  law.  The  purchaser  having  paid  a  valuable 
consideration,  bona  fide,  could  not  be  affected  at  law;  the  jury  must  find 
the  deed  good  or  bad,  and  could  not  decree  that  it  should  be  avoided,  on 
the  repayment  of  what  had  been  advanced.  This  is  an  answer  to  the 
question  of  jurisdiction,  which  has  been  raised  in  the  case.  The  com- 
plainant would  have  had  no  relief  at  law. 

In  several  English  cases,  even  where  the  defendant  appears  to  have 
been  a  partaker  of  the  fraud,  but  the  proof  was  not  entirely  clear,  the 
Court  has  set  aside  the  conveyance,  decreeing  it  to  stand  as  a  security  for 
the  money  actually  paid.  Heme  v.  Meeres,  1  Vern.  465,  was  a  case  of 
this  sort.  The  Chancellor  says  "  and  so  at  law,  where  a  case  is  found  to 
be  fraudulent,  the  creditor  comes  in  and  avoids  it  all,  without  repayment 
of  any  consideration  money ;  and  in  Equity,  therefore,  where  the  Court 
can  decree  back  the  principal  and  interest,  there  is  no  hurt  done ;  and  a 
lesser  matter  in  such  case,  will  serve  to  set  a  conveyance  aside."  Addison 
V.  Dawson,  2  Vern.  618,  and  Clarkson  v.  Han  way,  2  Pr.  Wms.  203, 
were  cases  in  which  upon  setting  aside  the  conveyance,  the  Court  decreed 
the  defendants  to  be  refunded  what  they  had  actually  paid.  In  Boyd  v. 
Dunlap,  1  Johns.  Ch.  Ca.  418,  where  the  consideration  was  very  inade- 
quate, but  the  proof  of  actual  fraud  in  the  defendant  doubtful,  tlie  Court 
set  aside  the  conveyance,  allowing  it  to  stand  as  a  security  for  the  money 
actually  paid.  Chancellor  Kent,  says  "  Courts  of  law  can  hold  no  middle 
course.  The  entire  claim  of  each  party  must  rest  and  be  determined  at 
law,  on  the  single  point  of  the  validity  of  the  deed ;  but  it  is  an  ordinary 
case  in  this  Court,  that  a  deed,  though  not  absolutely  void,  yet  if  obtained 
under  inequitable  circumstances,  should  stand  as  a  security  for  the  sura 
really  due."  Jn  How  v.  Weldon,  2  Yes.  516,  though  there  was  actual 
fraud,  dolus  in  re  ipsa,  as  the  master  of  the  rolls  expresses  it,  the  deed 
was  allowed  to  stand  as  a  security  for  the  money  paid.  I  *think,  rst^og^ 
however,  that  our  Court  of  Equity  was  right  in  determining,  in  '- 
the  case  of  Miller  v.  ToUeson,  State  Eq.  Rep.  145,  that  where  the  de- 
fendant was  a  partaker  of  the  fraud,  he  should  not  be  allowed  to  derive 
any  advantage  from  the  conveyance  ;  and  therefore,  where  it  was  made  to 
secure  a  previous  debt,  it  should  be  set  aside  absolutely. 

The  conveyance  being  good  at  law,  the  complainant  took  nothing  liy 
his  purchase  at  sheriff's  sale.  Creditors  had  an  equity  to  set  the  convey- 
ance aside  ;  but  if  it  had  been  the  defendant's  equity,  it  was  not  a  sub- 
ject of  levy  and  sale  by  the  sheriff.  He  can  only  sustain  his  bill  as  a 
creditor,  and  we  understand  there  are  other  creditors  who  have  a  legal 
priority  over  him,  of  which  we  are  not  authorized  to  deprive  them. 

In  addition  to  what  I  have  said  on  the  subject  of  jurisdiction,  it  may 
be  observed,  that  although  the  rule  be  that  the  title  to  freehold  shall  not 


202  SOUTH    CAROLINA    EQUITY   REPORTS.  [*295 

be  tried  in  this  Court,  yet  tlie  Court  has  jurisdiction  of  fraud  ;  and  noth- 
ing is  more  common  than  that  parties  should  come  into  this  Court  to  set 
aside  a  fraudulent  deed,  preparatory  to  a  trial  at  law.  This  is  an  appli- 
cation to  set  aside  a  fraudulent  deed.  If  that  deed  were  out  of  the  way, 
there  is  no  dispute  about  title — both  parties  concur  in  the  title  of  Ed- 
monds, and  claim  under  him. 

In  addition  to  the  money  paid  on  the  mortgage,  I  think  the  land  must 
stand  as  a  security  for  the  money  advanced  by  Mrs.  Wadlington  towards 
the  purchase.  She  states  positively  that  she  did  advance  this  money,  in- 
tending it  as  a  gratuity  to  her  daughter,  and  I  see  nothing  in  the  evidence 
to  contradict  her.  She  states  indeed  that  she  advanced  $200  ;  but  it 
does  not  appear  that  Edmonds  applied  more  than  $128,73^  towards  the 
purchase.  These  sums,  however,  must  be  reimbursed  without  interest ; 
Mrs.  Edmonds  having  received  the  rents  and  profits  of  the  laud. 

With  respect  to  the  question,  whether  the  conveyance  to  Nance  is  not 
a  marriage  settlement,  and  therefore  void  for  want  of  recording,  I  can- 
not see  how  it  can  be  regarded  as  such  a  settlement.  The  former  decree 
of  the  Court  was  intended  to  carry  the  will  into  effect,  and  as 
*29r"l  o^^s^'^^^cl*  by  the  Chancellor,  a  will  is  not  a  marriage  settlement. 
-^  The  deed  is  not  supported  by  the  marriage  consideration,  nor  by 
the  wife's  equity  which  results  from  the  marriage,  as  in  the  case  of  Price 
V.  White.  If  we  should  regard  every  conveyance  of  a  husband  to  the 
use  of  his  wife,  as  a  marriage  settlement,  this  would  not  come  under  that 
description.  In  legal  contemplation,  it  was  a  purchase  from  a  third  per- 
son by  a  trustee,  for  the  use  of  his  cestui  que  (rust.  The  conveyance  to 
Meng  was  certainly  not  a  marriage  settlement.  The  same  transaction 
might  have  happened,  though  Mrs.  Edmonds  had  been  unmarried,  and 
Jefferson  L.  Edmonds  a  stranger  to  her. 

As  there  are  older  judgments  against  Edmonds  than  that  of  complain- 
ant, and  as  it  may  be  that  he  has  been  prosecuting  for  the  benefit  of 
others,  and  will  derive  no  advantage  from  the  decree,  it  would,  in  that 
event,  be  inequitable,  if  other  creditors  should  obtain  benefit  from  the 
decree,  that  he  should  be  charged  with  costs. 

It  is  therefore  ordered  and  decreed,  that  the  decree  of  the  Chancellor 
be  reversed  ;  that  the  land  in  question  be  sold  by  the  Commissioner,  and 
that  out  of  the  proceeds  he  pay,  in  the  first  instance,  the  sam  of  $732.73 
to  the  defendant,  Robert  L.  Nance,  as  trustee,  and  the  surplus  to  the 
creditors  of  the  defendant,  Jefferson  L.  Edmonds,  according  to  their 
legal  priorities ;  and  that  he  advertise  for  creditors  to  come  in  and  estab- 
lish their  demands.  Parties  to  pay  their  own  costs  ;  provided,  that  if 
there  be  a  surplus  received  by  creditors,  the  complainant's  costs  shall  be 
paid  by  the  creditors  so  receiving,  in  proportion  to  the  sums  received  by 
them  respectively. 

Johnson,  J.,  concurred. 

O'Neall,  J.,  having  been  of  counsel  in  this  case,  gave  no  opinion. 


^297]  COLUMBIA,   MAY,   1833.  203 


*  John  Brown,  and  otliers,  v.  Wm.  K.  M'Donald.         [*297 

If  an  executor  or  admiinstrator  find  the  affairs  of  the  estate  so  complicated  as  to 
render  the  administration  difficult  and  unsafe,  be  may  institute  proceedings  in 
Equity  against  all  the  creditors  to  have  their  claim  adjusted  by  the  Court,  and  to 
obtain  its  judgment  for  hi^  guide.  There  is  no  difference  in  this  respect  between 
an  executor  and  administrator.  [*-'j01] 

The  general  rule  is  that  a  creditor  must  first  obtain  a  judgment  at  law  before  he 
can  ask  relief  in  Equity;  but  this  rule  applies  only  where  the  Cou.  t  is  called  to 
aid  a  creditor  in  furtherance  of  his  legal  remedy;  it  has  no  application  when  the 
Court  is  asked  to  give  effect  to  its  own  judgment.  And  therefore,  where  on  a 
bill  by  an  administrator  against  creditors  to  marshal  the  assets  &c.,  an  injunction 
was  obtained  restraining  proceedings  at  law  and  creditors  came  in  and  established 
their  demands;  this  is  a  judgment  of  the  Court  of  Equity:  and  if  the  creditors 
afterwards  file  their  bill  to  set  aside  certain  conveyances  by  the  intestate  as 
fraudulent,  and  it  appears  from  the  bill  that  they  have  no  remedy  at  law,  they 
will  be  entitled  to  relief  in  Equity.   [*o01] 

A  general  prayer  in  the  bill  fur  relief,  will  authorize  a  decree  for  the  specific  relief 
appropriate  to  the  case.  [*302] 

It  is  not  indispensably  necessary  to  establish  fraud  in  a  deed,  that  the  grantor  was 
indebted  at  the  time  of  its  execution,  or  that  it  was  executed  with  a  view  to 
future  indebtedness;  it  may  be  avoided  by  showing  that  the  sale  was  merely 
colorable.  [*303] 

Where  the  grantor,  being  indebted,  conveyed  his  land  to  his  mother,  for  a  valuable 
consideration,  which  was  paid  and  applied  to  his  debts,  and  it  was  agreed  at  the 
time,  that  he  should  retain  possession  of  the  land  during  his  life,  and  it  should 
go  to  his  children  on  his  death,  and  he  did  hold  possession,  and  the  grantee 
afterwards  devised  the  land  to  the  grantor's  children:  the  conveyance  was  held 
to  be  fraudulent  as  to   creditors,  and  set  aside.  [*304] 

Convej-ance  of  land  set  aside  as  fraudulent  against  creditors,  but  the  grantee  in- 
tending no  actual  fraud,  having  paid  the  consideration  and  applied 'it  to  the 
payment  of  the  grantor's  debts,  and  afterwards  devised  the  land,  the  Court 
ordered  the  money  actually  paid  to  be  refunded  to  the  devisee,  and  the  deed  to 

^  stand  as  a  security  for  it.  (a)  [*305] 

Quere,  whether  a  promise  by  a  parent  indebted  at  the  time,  to  pay  an  infant  for  his 
services,  will  support  a  deed  against  the  other  creditors?  [*305] 

Where  negroes  were  purchased  and  paid  for  by  a  debtor,  and  the  title  made  to  his 
sons,  under  the  circumstances  it  was  held,  that  a  trust  resulted  to  the  debtor  in 
favor  of  creditors,  and  the  negroes  were  held  liable  for  his  debts.  [*3U6] 

The  bill  in  this  case  was  filed  by  the  plaintiffs,  as  creditors  of  Thomas 
M'Donald,  deceased,  to  set  aside  certain  conveyances  of  land  and  slaves, 
and  to  subject  them  to  the  payment  of  their  demands ;  and  also  for  an 
acconnt  of  the  rents  and  profits,  to  be  applied  to  the  same  purpose. 

The  late  Thomas  M'Donald,  the  father  of  the  defendant,  being  embar- 
rassed in  his  circumstances,  in  September,  1811,  executed  a  deed  for  a 
tract  of  seven  hundred  acres  of  land,  in  Lancaster  District,  whereon  he 
resided,  to  his  mother,  Mrs.  Charlotte  M'Donald,  purporting  to  be  in 
consideration  of  $1000.  The  deed  was  delivered  to  Mr.  Massey,  tor 
safe-keeping — was  recorded  in  1814,  and  not  given  up  to  the  party  until 
after  the  death  of  Thomas  M'Donald.  When  the  deed  was  executed, 
Thomas  M'Donald  was  indebted  to  his  father's  estate  $300.  Mrs. 
M'Donald  took  this  debt  on  Thomas,  in  part  of  Her  share  of  her  lius- 
band's  estate,  to  go  in  part  payment  of  the  land,  and  paid  the  remaining 


(a)  See  also  M'Meekin  v.  Edmonds,  ante, 


288. 


204  SOUTH    CAROLINA    EQUITY   REPORTS.  [*297 

seven  hundred  dollars  to  him  and  his  creditors.  It  appeared  also  to  be 
the  nnderstandine:  at  the  time,  that  Thomas  M'Donald  should  retain  pos- 
session during  his  life,  and  that  the  land  would  then  g'o  to  his  children. 
Thomas  M'Donald  did  remain  in  possession  of  the  land,  and  enjoyed  it 
as  before,  without  paying-  rent,  and  in  all  respects  acted  as  the  owner, 
until  his  death,  in  1828.  The  value  of  the  land,  with  the  ferry,  was  esti- 
mated by  the  witnesses,  at  from  three  to  five  thousand  dollars. 

Mrs.  Charlotte  M'Donald  died  in  August,  1812,  leaving  a  will  by 
which  she  devised  and  bequeathed  the  land  in  question,  and  five  slaves,  to 
her  son,  Thomas  M'Donald,  for  twenty  years,  and  then  to  be  equally 
divided  anrong  his  children,  of  whom  the  defendant  is  the  only  survivor. 
The  land  was  subsequently  sold  by  the  sheriff,  for  fifty  dollars,  as  the 
property  of  Thomas  M'Donald ;  the  titles  were  executed  to  the  defend- 
ant and  his  deceased  brother,  but  the  consideration  paid  by  Thomas 
M'Donald.  The  defendant,  Wm.  K.  M'Donald,  generally  resided  with 
j^jjQj,-,  his  father  until  the  death  of  the  latter,  *and  acted  for  some  time 
-I  on  his  own  account,  and  a  part  of  the  time  as  an  overseer  for  his 
father ;  he  claimed  four  horses  as  his  own,  but  it  was  admitted  that  he 
had  no  other  means  of  obtaining  property  than  by  his  own  industry.  On 
his  father's  death,  in  1828,  he  took  possession  of  the  premises,  received 
the  crop  of  that  year,  and  has  had  possession  ever  since.  He  was  not  of 
age  until  the  year  following. 

As  regards  the  negroes,  Rachel  and  her  children,  which  the  plaintiffs 
seek  to  make  liable  to  their  debts,  it  appears  that  they  were  purchased 
and  paid  for  by  Thomas  M'Donald,  in  1827,  but  the  bill  of  sale  was  exe- 
cuted to  the  defendant  and  his  brother,  (since  deceased.)  These  negroes 
remained  on  the  plantation,  in  Thomas  M'Donald's  possession,  until  his 
death,  when  they  went  into  the  defendant's  possession  For  the  purpose 
of  sho.wing  the  fraudulent  intent  of  Thomas  M'Donald,  the  plaintiffs 
proved  that  in  1819,  he  executed  a  deed  to  the  defendant  and  his  brother 
for  nine  slaves,  who  continued  afterwards  in  his  possession.  They  are 
not  now  in  dispute. 

Since  1811,  Thomas  M'Donald  was  generally  embarrassed,  and  finally 
died  insolvent.  After  his  death,  his  administrator  filed  a  bill  in  equity 
to  marshal  the  assets,  and  to  enjoin  creditors  from  proceeding  at  law, 
and  compel  them  to  come  in  and  establish  their  debts  against  the  estate. 
An  injunction  was  obtained,  and  the  plaintiffs,  among  other  creditors, 
established  their  demands  before  the  Commissioner,  but  they  have  not 
obtained  judgments  at  law 

The  case  was  heard  by  Chancellor  De  Saussure,  at  Lancaster,  July, 
1832. 

The  Chancellor  held  that  the  conveyances  of  the  land  were  fraudulent ; 
that  Thomas  M'Donald  having  paid  for  the  negroes,  Rachel  and  her 
children,  a  resulting  trust  was  created  to  him,  to  which  his  creditors  were 
entitled.  His  Honor,  therefore,  set  aside  the  conveyances,  and  decreed 
the  land  and  negroes  liable  to  the  claims  of  the  creditors,  and  that  the 
defendant  should  account  for  the  rents  and  profits,  from  which  any  sum 
he  might  appear  entitled  to  by  the  report  of  the  Commissioner,  for  his 
services  as  an  overseer,  should  be  deducted.  From  this  decree  the  de- 
fendant appealed,  ou  the  following  grounds : 


*299]  COLUMBIA,  MAY,   1833.  205 

*1.  That  the  deed  from  Thomas  M'Donald  to  his  mother  was  r^^^n 
not  fraudulent,  inasmuch  as  Thomas  M'Donald  at  that  time  pos-  L  -^^ 

sessed  property  more  than  sufficient  to  pay  all  his  debts,  besides  land 

that  the  sale  of  the  land  nearly  paid  all  his  debts  at  that  time,  nor  was 
there  proof  of  his  indebtedness  for  several  years  after.  And  the  consid- 
eration of  the  deed  having  been  fully  paid,  and  there  being  no  intention 
to  defraud  creditors,  the  deed  should  have  been  sustained. 

2.  That  although  Rachel  and  her  children  were  paid  for  by  Thomas 
M'Donald — it  was  also  proved,  that  he  was  indebted  to  the  defendant  for 
his  services,  and  for  that  reason  the  Court  should  have  decreed  in  favor 
of  the  defendant's  title. 

3.  That  the  defendant,  not  being  a  party  to  the  bill  filed  by  the  admin- 
istrator of  Thomas  M'Donald,  against  the  creditors,  should  not  be  bound 
by  the  proceedings  in  that  case  ;  nor  should  the  plaintiffs  derive  any  ad- 
vantage from  them,  as  against  the  defendant. 

4.  Tiiat  the  plaintiffs  should  have  established  their  demands  by  judg- 
ments at  law,  before  asking  this  Court  for  relief,  and  without  which  this 
Court  has  no  jurisdiction. 

5.  That  the  plaintiffs'  bill  does  not  pray  to  set  aside  the  deed  from 
Thomas  M'Donald  to  his  mother,  and  no  such  relief  should  therefore  have 
been  granted. 

WUliams,  for  the  appellant,  contended,  that  a  creditor  cannot  ask  the 
aid  of  this  Court  without  having  first  obtained  a  judgment  at  law, 
Screven  v.  Bostick,  2  M'C.  Ch.  410-16.  Establishing  tlie  debts  in  the 
Court  of  Equity,  would  not  be  a  compliance  with  the  rule,  and  it  might 
be  questioned  whether  an  administrator  could  file  a  bill  to  marshal  the 
assets,  and  to  compel  creditors  to  come  in  and  establish  their  debts,  what- 
ever an  executor  might  do.  And  on  the  facts,  he  insisted,  that  the  trans- 
actions on  the  part  of  Thomas  M'Donald  were  not  fraudulent,  the  sale  of 
the  land  being  for  a  valuable  consideration,  which  was  fully  paid,  when 
there  was  but  slight  indebtedness — and  that  the  title  of  the  negroes  was 
vested  in  the  defendant,  in  consideration*  of  his  services,  which  r^oQQ 
were  proved  to  have  been  rendered  ;  and  the  answer  of  the  defend-  ^ 
ant  is  conclusive  in  this  respect. 

Blanding,  contra,  argued,  that  the  case  of  Screven  v.  Bostick,  2  M'C. 
Ch.  410,  only  decides  that  a  creditor  shall  not  ask  the  aid  of  the  Court  of 
Equity,  until  he  has  exhausted  all  the  means  at  law  ;  but  the  bill  by  the 
administrator  prevents  the  plaintiff  from  proceeding  at  law.  He  com- 
mented on  the  facts,  to  show  that  the  transactions  were  fraudulent  as  to 
creditors,  and  cited  and  relied  on  Smith  v.  Henry,  2  Bailey,  118,  and  S. 
C.  1  Hill,  16. 

Clarke,  in  reply.  As  to  the  right  of  an  administrator  to  file  a  bill 
against  creditors  to  establish  their  demands,  and  to  marshal  assets,  cited 
Tollor's  Executors,  450.  As  to  the  fraud,  he  contended  that  the  transac- 
tions were  bona  fide,  and  that  the  circumstances  of  the  case  could  not 
warrant  the  conclusion  in  either  a  legal  or  moful  point  of  view  ;  and 
cited  and  commented  on  1  M'C.  Ch.  251  ;  4  M'C.  294  ;  1  M'C.  227  ;_1 
Eq.  Rep.  348.  And  whatever  might  be  the  conclusion  of  the  Court  m 
this  respect,  the  Court  should  allow  the  defendant  for  the  luoney  actually 


206  SOUTH   CAROLINA    EQUITY   REPORTS.  [*300 

advanced  by  Mrs.  M'Donald  to  the  payment  of  Thomas'  debts.  Xewland 
on  Con.  352. 

O'Neall,  J.  Preliminary  to  the  discussion  of  this  case  on  the  merits, 
it  was  contended  :  1st.  That  the  proceedings  in  the  case  of  the  adminis- 
trator of  Thomas  M'Donald  against  his  creditors  were  irregular,  and  that 
therefore  the  decree  establishing  the  debts  of  the  plaintiffs  could  not  be 
regarded  as  a  judgment.  2d.  That  the  plaintiffs  could  not  maintain  this 
bill,  inasmuch  as  they  had  not  recovered  judgments  at  law,  sued  out  exe- 
cutions and  pursued  the  estate  of  their  debtor  to  insolvency.  It  will  be 
necessary  to  dispose  of  these  objections  before  proceeding  to  consider  the 
case  on  the  merits. 

1.  I  had  supposed  thai  an  administrator  or  executor  had  an  unques- 
tionable right,  when  they  found  any  difficulty  in  the  administration  of  the 
estate,  to  Ijring  the  whole  matter  with  all  the  parties  interested  therein, 
*qmi  ^^  the  view  of  the   Court  of  Equity,*  and   obtain   its  judgment 

-I  for  his  guide.  But  it  seems  that  doubts  are  entertained  by  coun- 
sel as  to  the  correctness  of  this  practice.  Toller,  in  his  law  of  executors, 
455,  relied  on  as  authority  in  the  argument  of  defendant's  counsel,  says, 
"if  the  executor  find  the  affairs  of  the  testator  so  complicated  as  to  ren- 
der the  administering  of  the  estate  unsafe,  he  may  institute  a  suit  against 
the  creditors  for  the  purpose  of  having  their  several  claims  adjusted  by 
the  decree  of  the  Coui't."  This  was  not  denied  to  be  law,  but  a  distinc- 
tion was  attempted  to  be  made  between  executors  and  administrators ; 
the  rule  was  conceded  in  the  case  of  the  former,  but  denied  in  the  latter. 
There  is,  however,  no  such  distinction,  both  have  the  same  remedies,  and 
both  are  properly  accountable  in  Equity.  I  think,  therefore,  that  the 
first  objection  cannot  avail  the  defendant. 

2.  The  general  rule  in  Equity  seems  to  be,  that  a  creditor,  to  entitle 
himself  to  relief,  must  not  only  have  recovered  a  judgment  at  law,  but  also 
must  "  show  that  he  has  proceeded  at  law  to  the  extent  necessary  to  give 
him  a  complete  title  "  Brinkerhofif  v.  Brown,  4  J.  Ch.  Rep.  67]  ; 
Screven  v.  Bostick,  2  M'C.  Ch.  Rep.  410.  But  this  general  rule  applies 
solely  to  cases  where  the  Court  is  called  on  to  aid  a  creditor  in  further- 
ance of  his  legal  remedy.  It  has  no  application  where  the  Court  is 
called  on  to  aid  a  creditor  in  giving  effect  to  its  own  judgment.  There 
the  only  questions  are,  has  the  Court  jurisdiction  on  the  matters  charged  ? 
and  without  some  further  decree  is  the  creditor  without  an  effectual 
remedy  ?  In  the  language  of  Judge  Nott,  in  the  case  of  Bostick  v. 
Screven,  the  plaintiffs  must  show  that  their  decree  "  cannot  be  enforced 
without  the  aid  of  the  Court  of  Equity"  against  this  defendant.  They 
have  undertaken  to  do  this,  and  have  I  think  succeeded.  It  appears 
from  the  proceedings  had  in  the  case  of  the  administrator  of  Thomas 
M'Daniel,  against  the  present  complainants  and  others,  creditors  of  the 
said  Thomas,  that  their  debts  were  established  as  simple  contracts,  and 
that  the  administrator  had  in  his  hands  assets  to  the  amount  of  $446.35 
applicable  to  specialities.  This  is  a  judgment  of  the  Court  of  Equity, 
entitling  the  plaintiffs  to  payment,  but  at  the  same  time  declaring  that 
*3021  ^'^^'^  "^^^'^  ""^  *assets  in  the  administrator's  hands  for  payment. 

"-^  It  is  analogous  to  a  judgment  at  law,  of  assets  quando  acciderin 
on  the  plea  oi  plene  adminidravit.     In  such  a  case  it  would  not  be  pre- 


*302] 


COLUMBIA,    MAT,    1833.  207 


tended  that  an  execution  would  be  necessary  to  complete  the  plaintilPs 
title  to  relief  in  Equity.     It  is  true  there  may  be  real  estate,  and  if  the 
bill  was  silent  in  that  respect  it  might  constitute  a  reason  why  Etmiiy 
should  not  interfere.     But  it  is  expressly  alleged  by  the  comphiiiu\i\ts 
and  admitted  by  the  defendant,   that  the  whole  real  estate  of  'J'homas 
M'Donald,   before  his  death  was  sold  at  sheriff's  sale  under  execution, 
and  titles  executed  to  the  defendant  and  his  brother  now  deceased,  and 
that  the  purchase  money  was  paid  by  the  said  Thomas.     According  to 
this  allegation  and    admission,   there    was  no    real   estate    of  the   said 
Thomas  which  could  be  made  available  by  execution  without  the  aid  of 
this  Court.     The  legal  title  was  in  the  defendant,  and  the  equitable  title 
in  the  said  Thomas.     This,  as  well  as  the  fraud  in  the  title  which  the 
defendant  derived  from  Charlotte   M'Donald  in  the  same  land,  and  the 
fraud  and  the  resulting  trust  in  the  slave  Rachel  and  her  children,  not 
only  showed  most  satisfactorily  that  the  plaiutifls  could  have  no  remedy 
by  execution,  but  also  that  the  Court  of  Equity  had  jurisdiction  of  the 
case,  and  was  l)ound  to  relieve  the  plaintiff's  if  the  fraud  and  resulting 
trusts  were  established. 

This  brings  us  to  consider  the  right  of  the  plaintiff's  to  have  a  decree 
made,  declaring  liable  to  the  payment  of  the  debts,  1st,  the  land,  and 
2dly,  the  slaves,  Rachel  and  her  children.  As  to  the  land,  it  is  objected 
that  the  complainant  has  not  prayed  that  the  deed  from  Thomas 
M'Donald  to  Charlotte  M'Donald,  should  be  set  aside.  The  fact  that  a 
party  does  not  pray  for  the  specific  relief  appropriate  to  his  case,  is  no 
ground  of  objection  to  a  decree  in  his  favor,  provided  his  bill  contains  a 
general  prayer  for  relief,  and  the  relief  decreed  arises  out  of  the  case 
made  by  the  pleading.  Tlie  bill  sets  out  the  sale  and  conveyance  of  the 
land  in  dispute,  by  the  sheriff  of  Lancaster  District,  for  $50,  to  the  de- 
fendant and  his  brother  now  deceased,  and  alleges  the  said  consideration 
was   paid  by  Thomas  M'Donald,  who  was  then   deeply  indebted  ;  and 


prays  that  the  said  sale  *and  conveyance  may  be  set  aside,  and 


[*303 


the  land  be  decreed  to  be  sold  for  the  payment  of  the  debts  of  the 
said  Thomas.  The  defendant  admits  this  case  of  the  complainants,  and 
to  avoid  it  sets  up  an  antecedent  conveyance  of  the  land,  by  Thomas 
M'Donald,  to  his  mother,  Charlotte  M'Donald — her  will  devising  it  to 
him  for  twenty  years,  and  after  that  time  to  his  children,  of  whom  the 
defendant  is  the  only  surviving  one.  This  defence  of  the  defendant  put 
the  deed  in  issue,  and  it  was  necessary  that  this  validity  should  be 
established,  before  he  could  derive  any  benefit  from  it.  A  formal  reply 
on  the  record  to  the  defendant,  has  long  been  out  of  use  in  this  State — 
the  proof  of  the  complainants  must  be  regarded  as  in  reply  to  the  defence 
in  the  answer,  and  the  charge  of  fraud,  thus  made  out,  the  same  as  if  it 
had  been  formally  replied,  by  a  replication  on  file.  In  this  view,  it  was 
perfectly  competent  to  the  Chancellor  to  make  the  decree  which  he  did. 
But,  in  addition,  it  may  be  remarked,  that  the  validity  of  the  sheriff's  sale 
was  very  intimately  connected  with  the  legality  of  the  defendant's  title, 
under  the  deed  to"^his  grandmother.  If  tliat  'had  been  good,  it  would 
have  interposed  a  serious  obstacle  to  anv  relief  against  the  sheriff's  sale. 
The  prayer  of  the  bill,  for  a  sale  of  the  laud  in  satisfaction  of  the  debts  of 
Thomas  M'Donald,  covers  every  thing  which  may  be  necessary  to  bo  de- 
creed to  disencumber  his  title,  and  to  subject  the  land  to  sale.     In  order 


*304] 


208  SOUTH   CAROLINA   EQUITY   REPORTS.  [*303 

to  make  such  a  decree,  it  was  necessary  that  the  defendant's  title,  under 
his  grandmother  should  be  vacated. 

As  to  the  alleged  fraud  in  that  deed,  I  concur  fully  in  the  conclusion 
of  the  Chancellor.  It  is  not  indispensably  necessary  to  establish  fraud 
in  a  deed,  as  against  the  creditors,  that  it  should  be  shown  that  the  party 
was  in  debt  at  the  time  of  its  execution,  or  that  it  was  executed  with  a 
view  to  future  indebtedness.  A  deed  is  frequently  avoided  by  proof  of 
facts  subsequent  to  its  execution,  showing  that  the  sale  was  merely 
colorable.  For  if,  notwithstanding  an  absolute  sale,  possession  remain 
in  the  vendor,  it  is  generally  destructive  of  the  conveyance.  The  reten- 
tion of  possession  creates  the  inference  that  the  sale  was  made  upon  a 
secret  trust,  for  the  use  of  the  vendor.  The  fraud  *consists  in  this, 
that  the  vendee  permits  hira  to  hold  himself  out  to  the  world  as 
the  owner  of  the  property,  and  upon  the  faith  of  it,  to  obtain  credit. 
The  case  before  us,  however,  is  accompanied  by  sufficient  facts,  at  the 
execution  of  the  deed,  to  render  it  void.  The  proof  is,  that  the  grantor 
was  then  in  debt  beyond  the  consideration  paid,  which  was  applied  to  the 
payment  of  his  debts  ;  that  from  that  time  to  his  death,  he  continued  in 
debt ;  and  that  at  the  sale  it  was  agreed  that  he  should  retain  possession 
during  his  own  life,  and  that  it  should  then  go  to  his  own  children.  If 
the  defendaat  could  put  his  finger  on  any  point  of  time  from  the  execution 
of  the  deed  to  his  father's  death,  when  he  was  clear  of  debt,  he  might  well 
say  that  the  old  debts,  which  were  paid  off,  ought  not  to  affect  the  deed, 
and  they  would  not.  But  he  is  unable  to  do  this — and  the  subsequent 
debts,  contracted  in  exoneration  of  preceding  ones,  are  nothing  more 
than  a  continuation  of  the  antecedent  indebtedness.  Like  a  stone  de- 
scending a  mountain  covered  with  snow,  its  bulk  is  increased  every  time 
it  rolls  over ;  but  still  every  added  particle  is  referable  to  the  stone  origi- 
nally put  in  motion,  as  the  cause  of  its  adhesion  to  the  aggregate  mass. 
Bat  if  the  grantor  did  not  owe  a  single  debt  at  the  time  of  the  execution 
of  the  deed,  the  agreement  then  made,  that  he  should  hold  for  life,  and 
that  his  children  should  succeed  him,  shows  that  the  sale  was  colorable 
merely,  and  upon  an  express  parol  trust  for  the  grantor's  use.  This 
(although  I  have  no  doubt  the  mother,  to  whom  the  deed  was  made, 
intended  no  moral  fraud)  was  yet  covin  in  law,  and  made  the  deed,  as  an 
absolute  conveyance,  void  as  against  subsequent  creditors  without  actual 
notice  of  it.  The  deed,  too,  was  left  with  Mr.  Massey  for  safe-keeping, 
and  he  did  not  deliver  it  over  to  the  devisee  of  Mrs,  M'Donald,  until  after 
the  death  of  Thomas  M'Donald.  This  is,  in  itself,  another  strong  circum- 
stance, indicating  fraud.  The  deed  deposited  in  the  hands  of  a  third 
person,  might  have  been,  and  probably  was,  intended  to  be  produced  or 
suppressed,  accordingly  as  exigencies  might  demand  It  is,  however, 
unnecessary  to  pursue  the  evidence  farthei"  in  detail ;  it  is  abundant  to 
*3051  ^'^°^^'  ^^'^^  according  to  familiar  ^principles,  this  deed  cannot  be 
-■  sustained  as  an  absolute  conveyance,  and  that  the  land  is  lial)le  to 
the  payment  of  the  complainant's  debts.  But  I  think  that  the  considera- 
tion actually  paid  by  Mrs.  M'Donald,  and  applied  to  the  debts  of  her  son, 
ought  to  be  refunded  to  her  devisee,  the  defendant;  and  that  in  this  point 
of  view,  the  deed  may  be  regarded  as  a  security  for  it.  The  proof  is 
clear  that  she  paid  for  the  land  a  debt  due  by  the  son  to  her  husband's 
estate,  of  $300,  and  that  the  remaining  $700  of  the  consideration  were 


*305]  COLUMBIA,   MAY,    1833.  209 

also  paid,  appears  to  be  pretty  clearly  made  out.  Althonpcli  the  convey- 
ance is  contaminated  by  legal  fraud,  it  does  not  appear  that  the  grantee 
intended  any  actual  fraud.  In  equity  the  parties  are  entitled,  when  they 
have  acted  witliout  any  intention  to  commit  a  fraud,  to  be  put  in  statu  quo. 
This  is  done  by  setting  the  deed  aside,  and  refunding  the  money  paid. 
ISTo  one  can  complain  of  this.  The  money  paid  was  applied  to  the  pay- 
ment of  debts,  which  were  entitled  to  be  paid  out  of  the  land  and  might 
have  sold  it.  Boyd  v.  Dunlap,  and  others,  1  John.  Ch.  Rep.  418.  But 
the  money  must  be  refunded  without  interest  until  the  time  at  which  the 
title  is  devested,  and  the  defendant  is  ordered  to  account  for  rents  and 
profits.  For  up  to  that  time,  the  land  is  used  in  the  manner  and  by  the 
person  in  which  and  by  whom  the  grantee  directed  and  consented  it 
should  be  used.  The  rents  of  the  land,  although  received  by  her  grantor, 
was,  'in  point  of  law,  received  by  her,  as  an  equivalent  for  interest. 

There  can  be  no  question  about  the  negro  woman  Rachel  and  her 
children.  Thomas  M 'Donald  purchased  and  paid  for  them,  and  took  a 
title  to  them  in  the  name  of  his  two  sons.  A  trust  resulted  to  him  in 
favor  of  his  creditors,  and  the  property  as  against  them  was  as  much  his, 
as  if  he  had  taken  the  bill  of  sale  in  his  own  name  The  defendant  con- 
tends, however,  that  his  father  was  indebted  to  him,  and  that  the  purchase 
was  made  in  extinguishment  of  that  debt.  The  nature  of  the  indebted- 
ness might  seriously  affect  the  conveyance,  were  it  necessary  to  go  into 
that  question.  For  I  am  not  prepared  to  say  that  a  promise  to  pay  an 
infant  son  *for  his  labor,  by  his  father  who  is  indebted,  would  r^pnp 
constitute  such  a  valuable  consideration  as  would  prevent  a  deed  '- 
founded  on  it  from  being  declared  fraudulent.  For  at  law  the  father  is 
entitled  to  his  services,  and  if  he  give  up  this  right  and  promise  to  pay 
him  for  them,  this,  although  it  might  be  binding  on  him,  would,  as  against 
his  creditors,  be  purely  voluntary,  and  would  hardly  be  enough  to  sup- 
port the  deed.  But,  as  I  have  already  said,  it  is  not  necessary  to  pursue 
that  inquiry  any  fujfher.  There  is  no  evidence  that  the  father  bought 
and  paid  for  the  negroes  in  consideration  and  in  extinguishment  of  his 
indebtedness  to  his  son.  The  defendant  says  so  in  his  answer,  but  this 
is  in  avoidance  of  the  title  wliich  the  law  would  imply  in  his  father  from 
the  admission  contained  in  the  answer.  Thomas  M'Donald  bought  and 
paid  for  the  negroes  and  took  a  title  in  the  name  of  the  defendant  and 
his  brothel",  as  his  answer  admits.  A  trust  resulted  from  these  facts,  to 
the  said  Thomas,  in  favor  of  his  creditors,  and  tbe  answer  to  avoid  it 
alleges  that  he  bought  and  paid  for  them  in  satisfaction  of  a  debt  due  to 
the  defendant.  To  sustain  this  allegation  of  his  answer,  the  defendant 
was  bound  to  prove  an  agreement  that  they  should  be  so  bought,  or  that 
they  were  accepted  in  satisfaction  of  the  debt.  In  this  he  has  failed.  He 
has  only  proved  that  he  overseered  for  his  father  some  time  previous  to 
this  purchase.  How  long  he  had  so  served  him,  or  how  much  was  really 
due,  is  uncertain.  It  is  perfectly  clear,  however,  that  his  father  did  not, 
and  could  not,  owe  a  sum  equal  to  the  price  of  the  negroes.  The  fact 
that  they  were  conveyed  to  himself  and  his  brother,  shows  that  his  father's 
indebtedness  to  him  could  not  have  constituted  any  part  of  the  consider- 
ation. I  am  satisfied,  therefore,  that  the  negroes  must  also  be  declared 
liable  to  the  payment  of  the  complainants'  debts. 

The  defendant  must  also  account  for  the  rents  and  profits  of  the  land 
Vol  J.— U 


210  SOUTH    CAROLINA    EQUITY    REPORTS.  [*306 

and  ferry,  and  the  hire  of  the  slave  Rachel  from  the  first  of  January, 
1828;  for  the  proof  is  that  he  received  the  crop  of  that  year  in  which 
his  father  died,  and  that  he  has  had  possession  ever  since.  Upon  the 
death  of  his  father,  the  crop,  land,  and  slaves,  were  assets  applicable  to 
the  payment  of  his  debts  ;  and  a  receiver  would,  in  such  a  case,  have 
*qn7l  *''^6eu  appointed  by  the  Court  of  Equity,  until  the  decision  of  this 
-•  case.  It  follows,  that  rents  and  profits  and  hire  must  be  accounted 
for.  In  such  account  the  defendant  must  be  allowed  credit  for  the  sum 
of  $1000,  paid  by  his  grandmother,  Charlotte  M'Donald,  for  the  land, 
with  interest  thereon  from  the  first  day  of  January,  1828  ;  and  also  for 
whatever  sum  was  due  to  him  by  Thomas  M'Donald  at  the  time  of  his 
death  for  his  services  as  an  overseer.  From  this  last  item  must,  how- 
ever, be  deducted  any  sum  which  the  defendant  received  from  Thos. 
M'Donald,  in  either  money  or  horses.  1^  a  balance  on  the  whole  account 
should  be  struck  in  favor  of  the  defendant,  then  he  must  be  paid  such 
balance  out  of  the  sale  of  the  land  and  negroes. 

It  is  ordered  and  decreed,  that  so  much  of  Chancellor  De  Saussure's 
decree  as  conflicts  with  this  opinion,  be  modified  according  to  the  prin- 
ciples hereinbefore  stated,  and  in  all  other  respects  be  affirmed. 

Johnson  and  Harper,  Js.,  concurred. 


Wm.  Pinchback  vs.  The  Administrators  of  J.  M'Craven,  deceased. 

A  receipt  is  only  jyrima  facie  evidence  that  all  matters  were  then 
accounted  for,  and  finally  settled ;  it  is  not  conclusive,  and  if  fraud  or 
mistake  can  be  shown,  relief  will  be  granted  against  it ;  and  therefore, 
where  on  a  bill  to  account,  the  defendant  produced  a  receipt  in  full,  if 
the  plaintiff  can  show  that  there  were  other  moneys  not  embraced  in  the 
receipt,  and  not  then  accounted  for,  he  may  do  so,  and  will  be  entitled  to 
relief.  See  Benjamin  v.  Sinclair,  1  Bailey,  175 ;  M'Dowell  &  Black  v. 
Lemaiter,  2  M'C.  320. 


*308]  *Wm.  Stuckey,  and  others,  vs.  Hardy  Stuckey,  and  others. 

Where  tbe  residuary  clause  of  a  will  contains  the  following  words — "I  do  hereby 
leave  all  the  rest  of  my  property  that  is  not  above  mentioned,  such  as  horses, 
cattle,  hogs,  sheep,  geese,  beds,  crop  and  other  articles,  too  tedious  to  mention," 
&c. ;  Held,  that  money  on  hand  at  the  testator's  death,  passed  under  it.  (a)  [*309] 

This  bill  was  filed  by  the  plaintiffs  as  next  of  kin  and  heirs  at  law  of 
Edmund  Stuckey,  deceased,  charging  that  he  died  intestate  as  to  the 

(a)  See  Peay  &  Picket  v.  Barber,  ante,  95,  where  the  words  "all  the  rest  of  my 
property,"  in  the  residuary  clause  of  a  will,  were  restricted  to  a  particular  descrip- 
tioa  of  property.  ji. 


*30S]  COLUMBIA,   JUNE,    1833.  211 

money  on  hand  at  liis  death,  and  claiming  distribution  thereof.  Tlie 
only  question  was,  whether  the  sum  of  two  thousand  dollars,  found  on 
hand  at  the  death  of  Edmund  Stuckey,  passed  under  the  residuary  clause 
of  his  will,  which  is  in  the  words  follosving  :  "  I  do  hereby  leave  all  the 
rest  of  my  property  that  is  not  above-mentioned,  such  as  horses,  cattle 
hogs,  sheep,  geese,  beds,  crop  and  other  articles,  too  tedious  to  mention, 
to  be  equally  divided  between  Hardy  Stuckey,  Edmund  Stuckey,  Howell 
Stuckey,  and  Wm.  Peebles,"  who  were  also  appointed  his  executors. 

The  case  was  heard  on  the  bill  and  answers,  by  Chancellor  Johnston, 
at  Sumter,  February,  1833,  who  held  that  the  money  passed  under  the 
will,  and  dismissed  the  bill ;  and  from  his  decree  the  plaintiffs  appealed. 

Preston  and  Mayrant,  for  the  appellants.  This  is  a  question  as  to 
the  intention  of  the  testator.  The  general  rule  certainly  is,  that  the 
residuary  clause  carries  everything  not  before  enumerated ;  but  it  will 
not  apply  where  there  are  words  of  qualification,  restricting  the  generality 
of  the  meaning.  The  words,  "  the  rest  of  my  property,  such  as,"  followed 
by  an  enumeration  of  articles,  show  that  the  testator  intended  to  confine 
the  bequest  to  property  of  that  class.  The  words,  "  other  articles  too 
tedious  to  mention,"  could  not  be  intended  to  mean  the  money.  It 
amounted  to  one-fifth  of  the  testator's  whole  estate ;  and  can  it  be  sup- 
posed that  he  regarded  it  of  such  -small  value,  as  to  be  "  too  tedious  to 
mention  V 

irCord,  contra.  The  preamble  to  the  will  shows  the  testator's  inten- 
tion to  dispose  of  his  whole  estate ;  and  the  words  here  used  are  general 
enough  to  cover  the  money.  The  words,  "all  the  rest  of  my  property," 
"  and  other  articles,''  ^include  the  whole  estate.  Money  is  an  r^^onq 
article.  This  Court  has  held  it  to  be  a  chattel,  and  the  subject  of  ^ 
levy. 

O'Neall,  J.  We  agree  with  the  Chancellor,  that  there  were  no 
words  used  in  the  clause  of  the  will  under  consideration,  which  would 
restrict  the  general  words  "  all  the  rest  of  my  property  that  is  not  above 
mentioned,"  to  property  of  the  kinds  specifically  enumerated. 

The  money,  the  subject  of  this  suit,  was  found  on  hand  at  the  testator's 
death,  and  was  probably  acquired  after  the  execution  of  his  will.  The 
words  of  the  will  in  the  case  of  Cambridge  i;.  Rous,  8  Yes.  12,  are  very 
like  the  words  of  the  will  before  us — "  I  then  give  and  bequeath  all  the 
rest  and  residue  of  my  property  and  effects,  whether  in  money  or  in  the 
public  funds,  or  other  securities  of  any  sort  or  kind  whatever,  to  be 
equally  divided."  A  specific  legacy,  consisting  of  plate,  diamonds,  jewels, 
household  furniture,  linen,  wearing  apparel  and  old  gold  coins,  lapsed  by 
the  death  of  the  legatee,  in  the  lifetime  of  the  testatrix  ;  the  question 
was,  whether  the  lapsed  legacy  fell  into  the  residue  and  passed  under  the 
residuary  clause.  It  was  held  that  it  did.  The  Master  of  the  Rolls, 
Sir  William  Grant,  remarking  on  the  words,  says,  there  "  the  words, 
'  whether  in  money  or  in  public  funds,  or  other  securities  of  any  sort  or  ■ 
kind,  whatsoever,'  are  adverted  to  as  tending  to  show  that  at  least  the 
specific  articles  were  not  included.  But  these  are  not  words  of  restric- 
tion. They  are  rather  words  of  enlargement.  The  object  was  to  exclude 
nothing.     Such  an  enumeration,  under  a  videlicit,  a  much  more  restric- 


212  SOUTH    CAROLINA   EQUITY    REPORTS.  [*309 

tive  expression,  has  been  held  only  a  defective  enumeration,  not  a  restric- 
tion to  the  s|3ecific  articles. 

The  words  of  the  will  in  the  case  before  us,  are,  "I  do  hereby  leave 
all  the  rest  of  my  property,  that  is  not  above  mentioned,  such  as  horses, 
cattle,  hoo-s,  sheep,  geese,  beds,  crop,  and  other  articles  too  tedious  to 
mention,  to'be  equally  divided,"  &c.  The  general  term  "property,"  has, 
I  am  well  satisfied,  two  meanings,  one  legal  and  the  other  popular.  Its 
leo-al  meaning  is  equivalent  to  estate,  and  may  include  every  thing  a  man 
is  worth  : — Its  popular  meaning*  would  exclude  choses  in  action, 
"^^^^^  and  cash  on  hand.  If  there  was  anything  which  showed  that  the 
testator  used  it  in  its  restricted  popular  sense,  it  ought  to  be  so  restricted 
in  the  construction  of  his  will.  But  it  is  manifest  that  he  used  it  in  its 
largest  sense,  and  that  he  intended  it  to  cover  every  thing  which  he  had 
disposed  of.  The  specification  made  was  intended  to  enlarge,  and  not  to 
restrict,  the  words  before  used. 

In  the  case  of  Bland  v.  Lamb,  2  Jac.  &  Walk.  406,  Lord  Chancellor 
Eldon  states  the  rule  to  be,  "  that  very  special  words  are  required  to  take 
a  bequest  of  the  residue  out  of  the  general  rule."  That  was  a  case  of 
I)roperty  subsequently  and  very  unexpectedly  acquired,  by  the  will  and 
death  of  the  testator's  aunt,  who  was  one  of  his  legatees.  At  page  404, 
Lord  Chancellor  Eldon  states  the  general  doctrine  applicable  to  residuary 
legacies,  under  such  circumstances. 

"  After  the  cases  which  have  been  referred  to,  there  can  be  no  doubt 
that  a  gift  of  the  residue   may  have  a  limited  operation,  although  the 
generardoctrine  of  the  Court  is,  that  if  a  person  give  all  the  rest  cf  his 
personal  estate  or  property,  such  a  gift  will  not  only  pass  that  which  he 
then  has,  but  that  which  may  become  his  property ;  and  it  will  operate  in 
this  singular  way,  that  although  a  testator  may  probably  have  meant  to 
pass  nothing  but  what  he  had  at  the  time  of  his  will,  (which  alone,  ac- 
cording to  the  common  sense  of  the  expression,  can  be  called  his  pro- 
perty) yet  if,  at  the  time  of  his  death,  he  has  not  a  single  particle  of  that 
property,  and  has  afterwards  acquired  other  property,  this  last  property  will 
pass  under  the  words  "  my  property. "     The  Courts  have  held,  whether 
on  satisfactory  grounds  or  not  is  another  question,  that  where  a  person 
gives  all  his  property,  it  shows  that  he  did  not  mean  to  die  intestate  as  to 
what  he  had  at  the  time  of  making  his  will ;  they  have  inferred  that  he 
did  not  mean  to  die  intestate  as  to  what  he  should  have  at  the  time  of 
his  death.     This  rule  has  sometimes  operated  with  great  hardship,  and 
J^o■1 1  -1  directly  contrary  to  the  intention  of  the  party,  *but  notwithstanding 
-^  that,  it  has  been  allowed  to  prevail." 
From  these  authorities,  it  is  clear,  that  in  any  point  of  vie^v,  the 
Chancellor's  decree  is  correct,  and  ought  to  be  affirmed. 
It  is  accordingly  so  ordered. 

Johnson  and  Harper,  Js.,  concurred. 


'311]  COLUMBIA,   JUNE,    1833.  213 


Sarah  Cole,  and    others,  minors,  by  their  guardian,  v.    Alexander 

Creyon. 

General  rule  tbat  in  a  bequest  to  the  children  of  A.  and  B.,  or  to  A.  and  the 
children  of  B.,  they  take  per  capita;  but  a  bequest  to  an  ascertained  individual, 
and  to  a  class  of  unascertained  individuals  to  be  ascertained  at  any  future  time, 
vests  a  present  interest  of  one-half  in  the  individual  ascertained,  and  the  other 
half  vests  in  the  class  collectively,  when  they  are  ascertained.  [■=^31!iJ 

Where  a  bequest  is  to  children  at  the  death  of  a  tenant  for  lite,  those  who  then 
answer  the  description  of  children  will  take.  [*322] 

A  bequest  on  the  death  of  a  tenant  for  life  to  A.  and  the  children  of  Elizabeth,  to 
be  retained  by  the  executors,  until  the  age  of  twenty-one  or  day  of  marriage 
which  shall  first  happen — A.  takes  a  moiety  and  is  entitled  to  possession  at 
twenty-one;  and  the  other  moiety  must  be  distributed  equally  among  the  children 
of  Elizabeth  in  esse  when  the  eldest  attains  twenty-one.  [*3l!3] 

Application  for  partition  being  premature  it  was  refused,  but  the  bill  retained  with 
leave  to  apply  by  petition,  when  the  parties  respectively  become  entitled  to 
receive  their  shares.  [*32o] 

This  case  was  heard  at  Lancaster,  July,  1830.  The  following  decree 
of  the  Chancellor  then  pronounced,  presents  the  facts  and  the  questions 
made  for  the  decision  of  the  Court. 

De  Saussure,  Chancellor.  This  is  a  bill  for  the  partition  of  an  estate 
devised  to  the  complainants,  and  the  defendant. 

It  appears  that  George  Ilicklin  having  a  wife,  but  no  children,  made 

and  duly  executed  his  last  will  and  testament,  on  day  December, 

1823,  by  which  he  devised  and  bequeathed  his  whole  estate  to  his  wife 
for  life,  and  at  her  death  to  the  complainants  and  defendants,  who  were 
his  nephews  and  nieces,  subject  to  two  small  legacies  amounting  to  two 
hundred  dollars.  The  words  of  the  will  applicable  to  the  question  under 
consideration  are  as  follows  :  "  And  all  the  balance  of  said  estate  real 
and  persona],  it  is  my  will  and  desire,  that  it  be  equally  divided  between 
Henry  and  Elizabeth  Cole's  children,  and  Alexander  Creyon,  viz.,  the 
offspring  of  the  said  Elizabeth  Cole's  body,  and  no  other — to  be  retained 
in  the  hands  of  my  executors  and  executrix  until  the  age  of  twenty-one 
years,  or  days  of  marriage,  which  shall  first  happen  ;  then  to  be  made 
over  to  them  lawfully,  each  legatee  receiving  their  just  ^wo/!a  of  the  same, 
which  I  will  and  bequeath  to  them  and  their  heirs  forever."  The  testator 
had  two  nieces — Elizabeth,*  married  to  Henry  Cole,  and  Sarah,  the  r*322 

wife  of Creyon.     The  complainants  are  the  children  of  ^ 

Elizabeth  Cole,  and  the  defendant  is  the  only  son  of  Sarah  Creyon. 

George  Hicklin  died  leaving  his  said  last  will  and  testament  in  full 
force,  his  wife,  and  said  nieces,  Elizabeth  Cole  and  Sarah  Creyon,  Inm 
surviving— Henry  Cole,  the  husband  of  Elizabeth,  is  also  alive.  The 
complainants  are  their  children.  The  eldest  of  them  is  about  twelve 
years  of  age ;  and  the  defendant  Alexander  Creyon  of  the  age  of  seventeen 
years.  The  widow  of  the  testator  having  lately  died,  this  bill  was  liled 
for  partition  of  the  estate.  The  complainants  claim  that  the  estate  should 
be  divided  equally  between  them  and  their  cousin  Alexander  Creyon,  so 
that  each  shall  have  an  equal  share  thereof.  The  defendant  claims  a 
moiety  of  the  estate.     The  question  arises  out  of  the  wording  of  the 


214  SOUTH   CAROLINA   EQUITY    REPORTS,  [*312 

•will.  It  is  contended  for  the  defendant,  Alexander  Crejon,  that  he 
is  entitled  to  a  moiety  of  the  estate  by  the  terms  of  the  will,  taken 
in  conjunction  with  the  relative  situation  of  the  devisees  and  legatees. 
On  examination  of  the  disposing  words  of  the  will,  without  regarding 
technical  rules,  they  would  seem  obviously  to  import,  that  the  children  of 
Elizabeth  Cole  and  Alexander  Creyon,  are  to  take  the  estate  in  equal 
shares.  But  it  is  argued  for  the  defendant  that  this  could  not  be  the 
meaning  and  intention  of  the  testator,  because  by  the  provisions  of  the 
will,  the  situation  of  the  defendant  Alexander  Creyon,  is  entirely  different 
from  that  of  the  children  of  Elizabeth  Cole,  in  these  particulars.  He  is 
designated  by  name — the  others  are  to  take  as  the  children  of  Elizabeth 
Cole ;  and  the  delivery  of  their  share  is  postponed  to  a  future  day,  the  day 
of  marriage  or  attaining  twenty-one  years  of  age,  and  Elizabeth  Cole  may 
have  more  children  who  will  be  entitled  to  shares,  besides  these  born  at 
the  death  of  the  testator;  and  that  this  involves  difficulties  in  the  tenure 
of  the  estates,  which  ought  to  lead  to  a  different  construction.  I  have 
considered  the  able  argument  furnished  by  the  counsel  on  this  point.  But 
I  am  not  satisfied  by  it.  It  does  not  appear  to  me  that  the  plain  and 
obvious  import  of  the  disposing  words  of  the  will  should  be  changed  by 
a  consideration  of  the  difficulties  which  may  grow  out  of  the  decision 
*qio-]  gi'^'ii,?  effect  to  that  obvious  import.  *If  the  meaning  of  the  dis- 
-'  posing  words  of  the  will  was  doubtful  or  equivocal,  then  the  argu- 
ment ab  convenienti  would  a])ply,  and  might  lead  to  contrary  construc- 
tion. It  was  further  argued  for  the  defendant,  that  the  Court  might  be 
guided  in  the  construction  of  the  present  will,  by  the  provisions  of  a 
former  will  by  which  the  testator  devised  a  moiety  of  his  estate  to  his 
niece  Elizabeth  Cole,  and  the  other  moiety  to  his  niece  Mrs.  Creyon.  It 
is  very  dangerous  to  travel  out  of  the  will  under  consideration,  for  lights 
to  guide  us  in  the  construction  of  it.  Those  lights  would  often  be  de- 
lusive. The  Courts  have  been  so  aware  of  this  danger,  that  it  is  only  in 
a  few  and  most  peculiar  cases  that  they  will  receive  parol  evidence  to 
assist  to  guide  in  the  construction  of  wills.  Such  as  to  ex])lain  the  per- 
son or  thing  intended.  I  do  not  think  that  this  is  one  of  the  cases  in 
which  parol  evidence  is  receivable — I  permitted  the  parol  evidence  to  be 
taken  down  for  consideration.  It  consisted  of  two  parts — first,  that  by 
a  former  will  the  testator  gave  half  his  estate  to  one  of  his  nieces  and 
half  to  the  other,  and  that  on  Alexander  Creyon's  mother  marrying 
contrary  to  his  wishes,  he  made  the  new  will.  This,  as  far  as  it  goes, 
would  add  nothing  to  defendant's  claim  ])ut  rather  the  contrary.  One 
of  the  witnesses,  however,  went  on  to  say  that  he  drew  the  will  by  the 
directions  of  the  testator,  and  that  he  was  directed  to  draw  it  so  that  one 
half  of  the  estate  should  go  to  Alexander  Creyon,  and  the  other  half  to 
the  children  of  Henry  and  Elizabeth  Cole  ;  and  he  believed,  in  using  the 
words  he  did,  he  was  obeying  the  direction  of  testator,  and  that  if  they 
do  not  produce  that  effect  it  is  owing  to  his  mistake.  This  evidence  cer- 
tainly goes  directly  to  the  point,  and  if  received  and  allowed  to  control 
the  will,  would  establish  the  right  of  the  defendant  to  a  moiety  of  the 
estate  But  I  am  not  at  liberty  to  receive  and  allow  such  testimony.  It 
would  put  every  will  at  the  mercy  of  witnesses  who  might  be  purchased 
and  perjured ;  and  although  there  might  be  no  danger  in  this  case  (and 
none  has  been  suggested)  the  precedent  would  be  most  dangerous.     I 


#0 


313]  COLUMBIA,   JUNE,    1833.  215 

am  obliged  therefore  to  exclude  this  testimony.  The  will  then  must  be 
interpreted  by  its  own  words,  and  it  seems  to  me  they  carry  the  whole 
estate  to  be  divided  equally  *among  Alexander  Creyon  and  the 
children  of  Elizabeth  Cole  born  prior  to  the  time  fixed  for  the  divi-  L  ^^^ 
sion — when  the  eldest  of  them  attains  twenty-one  years  of  age,  or  day  of 
marriage — under  this  view  of  the  case  it  is  obvious  that  no  partition  can 
now  be  made.  The  application  is  premature.  The  com])lainants  are 
therefore  out  of  Court,  and  the  bill  must  be  dismissed  The  costs  to  be 
paid  out  of  the  estate. 

From  this  decree  the  plaintiffs  appealed,  because  the  Chancellor  refused 
partition  ;  the  defendant  also  appealed,  on  the  ground  that  the  Chancellor 
erred  in  deciding  that  he  was  only  entitled  to  take  equally  with  the  plain- 
tiffs ;  whereas,  he  contended  he  was  entitled  to  one-half  of  the  estate. 

Williams,  on  the  part  of  the  plaintiffs,  submitted  the  case  on  the  brief, 
without  argument. 

Blanding,  for  the  defendant.  The  only  question  in  the  case  is — whether 
the  offspring  of  Elizabeth  Cole,  as  a  class,  take  collectively  one-half  of 
their  testator's  estate,  or  individually  each  one-fifth  ? 

This  depends  on  the  construction  to  be  given  to  the  words  "  children" 
and  "  offspring."  The  defendant  contends  that  they  mean  a  class  of  un- 
ascertained individuals ;  and  that  A.  Creyon  takes  as  an  ascertained 
individual. 

That  there  was  a  life  estate  to  expire  before  it  could  be  ascertained  who 
were  to  take,  as  the  children  of  Elizabeth  Cole,  is  the  important  feature 
of  the  will,  and  on  it  the  defendant  rests  his  claim  to  one-half  of  the 
estate. 

Alexander  Creyon  was  a  person  certain,  and  his  remainder  was  to  vest 
in  possession,  on  a  fixed  and  certain  event.  He  therefore  took  a  present 
interest  in  a  vested  remainder.  The  children  of  Mrs.  Cole  were  unascer- 
tained ;  who  they  would  be  at  the  termination  of  the  life  estate,  was 
wholly  uncertain  and  contingent.  Their  estate  was,  therefore,  a  contin- 
gent remainder.    2  Prest.  35. 

The  first  position  requires  no  proof.  The  second  can  be  supported  by 
authorities.  Where  a  devise  or  bequest  is  to  the  children  of  a  person, 
and  no  time  is  fixed  for  the  division  or  distribution,  only  such  children  as 
are  in  being  at  the  testator's  death  can  take.  But  where  the  distribution 
is  postponed  to  ^  definite  period,  as  to  the  death  of  another  person,  then  all 
take  who  are  in  being  at  that  *period,  or  the  death  of  that  other  per-  r*325 
son.  In  Myers  v.  Myers,  2  M'C.  Ch.  257,  Judge  Nott  has  collected  ^ 
and  reviewed  all  the  cases  on  this  point,  and  he  says  that,  "  where  legacies 
are  given  to  a  class  of  individuals,  as  to  the  children  of  B.  to  be  divided 
among  them  at  the  death  of  C,  any  child,  who  can  entitle  himself  under  the 
description  at  the  time  of  distributing  the  fund,  may  claim  a  ])art  of  it — 
as  well  the  children  living  at  the  period  of  distribution  although  not  boru 
till  after  the  testator's  death,  as  those  born  before,  and  living  at  the  hap- 
pening of  the  event."  And  the  same  learned  Judge  adopts  the  principle 
of  the  case  of  Stanley  v.  Baker,  Moore's  Rep.  2:?0,  that  "a  bequest  to 
the  children  of  a  living  person,  vests  in  all  the  children  in  esse  at  the  ter- 
mination of  the  life  estate  on  which  it  is  limited." 

It  is  then  clear,  that  the  estate  could  not  vest  in  any  child  of  Elizabeth 
Cole,  until  the  death  of  the  testator's  widow.     In  Alexander  Creyon,  the 


!16]  " 


216  SOUTU    CAROLINA    EQUITY    REPORTS.  [*315 

estate  vested  on  the  death  of  the  testator,  subject  to  the  life  estate  of  his 
widow. 

This  being  established,  it  will  next  be  attempted  to  prove,  that  where 
classes  of  persons  are  to  take,  and  one  can  take  presently,  and  the  other 
must  take  on  a  fututure  contingency,  each  class  must,  from  necessity,  be 
tenants  in  common  with  the  other,  and  not  joint  tenants ;  and  that  each 
takes  a  moiety. 

The  fact  that  they  cannot  take  at  one  and  the  same  time,  excludes  one 
of  the  unities  essential  to  a  joint  tenancy.  This  needs  no  authority  to 
support  it ;  but  see  5  Co.  8  ;  1  T.  R.  630  ;  2  Prest.  20.  Creyon  and 
Cole's  children,  therefore,  could  not  take  as  joint  tenants,  but  as  tenants 
in  common.  It  then  remains  to  be  proved,  that  taking  as  classes  and  as 
tenants  in  common,  they  take  moieties. 

Mr.  Preston,  vol.  2,  p.  21,  says,  "  a  gift  to  the  right  heirs  of  two  per- 
sons who  are  dead,  will  be  a  gift  to  them  as  joint  tenants  and^jer  capita, 
and  not  per  stirpes.  But  a  gift  to  the  right  heirs  of  two  persons  who  are 
living,  creates  a  tenancy  in  common,  and  the  heirs  of  each  person  must 
take  a  moiety.  So  by  a  gift  to  the  heirs  of  three  persons,  of  *whom 
two  are  dead  and  one  is  living — it  seems,  the  heirs  of  the  person 
who  is  living,  would  take  one-third  part  separately  to  themselves,  and 
the  heirs  of  the  two  deceased  persons  would  be  joint  tenants  of  the  two 
remaining  third  parts.  But  if  the  gift  be  to  the  right  heirs  of  two  i)er- 
sons  who  are  living  and  of  one  who  is  dead,  the  heirs  of  the  different 
persons  collectivel}',  would  take  third  parts."  Prom  these  principles,  the 
conclusion  is  deduced,  that  a  bequest  to  an  ascertained  individual,  and  to 
a  class  of  unascei'tained  individuals,  vest  one-half  in  the  said  individual, 
and  the  other  half  in  the  individuals  of  the  class  collectively  when  they 
are  ascertained. 

Nemo  est  ha^es  vifcnlis,  is  the  principle  of  the  distinction  in  the  cases 
put  by  Mr.  Preston.  So  here,  that  no  one  can  be  ascertained  to  be  the 
offspring  of  Mrs.  Cole,  according  to  the  meaning  of  this  will,  till  the  death 
of  the  widow,  should  decide  this  case. 

Tliere  are  adjudged  cases  which,  at  first  blush,  would  seem  to  settle  the 
doctrine  against  the  defendant;  but  a  distinction  can  be  shown  between 
them  and  tliis. 

In  Butler  v.  Stratton,  3  Br.  Ch.  Rep.  SGT,  the  bequest  was  "  to  divide 
equally  between  A.,  B.  and  the  children  of  C."  and  it  w^as  held  that  the 
children  of  C.  took  as  if  named  individually  in  the  will.  In  that  case,  it 
is  to  be  observed,  that  a  present  interest  was  given,  and  no  children  could 
take  but  such  as  were  in  esse  at  the  testator's  death.  They  w^ere  a  class 
of  ascertained  individuals,  as  much  so  as  if  they  had  been  named  in  the 
will. 

In  Bladder  v.  "Webb,  2  Pr.  Wms.  383,  there  was  a  present  bequest 
equally  to  the  testator's  son  John,  to  his  son  Peter's  children,  and  his 
daughter,  Mrs.  Webb's  children.  Mrs.  Webb  was  alive.  Lord  Chan- 
cellor King  first  inclined  to  the  opinion,  that  the  grandchildren  w^ould 
take  per  stirjjes,  but  finally  decided  that  they  would  take  j^er  capita,  as 
if  all  the  grandchildren's  names  had  been  inserted  in  the  will.  Now  it  is 
observable  that  all  their  names  could  have  been  so  inserted  ;  because,  being 
a  gift  to  take  effect  at  the  testator's  death,  they  were  all  ascertained. 


*316]  COLUMBIA,   JUNE,    1833.  217 

That  does  not  then  come  up  to  our  case — and  there  the  ^Chancellor  r- . 
doubted.  But  a  strange  reason  is  ffiven  for  the  Chancellor's  change  L"^^! « 
of  opinion.  It  was,  that  Mrs.  Webb  was  alive,  and  therefore,  that  the 
children  could  not  represent  her,  and  could  not  take  per  stiryes.  Had 
she  been  dead  they  would  not  have  represented  her  in  that  estate,  and  the 
Chancellor  changed  his  opinion  on  a  verbal  distinction,  without  a  dif- 
ference. 

In  the  case  of  Phillips  v.  Garth,  3  Brown  Ch.  64,  Judge  Bnller  for  the 
Chancellor  decided,  that  under  a  bequest  "to  next  of  kin,  equally  to  be 
divided,  share  and  share  alike,^'  a  brother,  a  nephew,  and  the  nieces  of 
a  deceased  brother,  took  pe?-  capita,  and  not  per  stirpes.  Buller  said 
he  was  bound  by  the  authority  of  Bladder  v.  Webb,  although  he 
thought  they  ought  to  have  taken  per  stiiyes.  This  case,  too,  was  one 
where  a  present  interest  passed,  and  all  the  legatees  were  in  esse,  and 
ascertained  at  the  testator's  death. 

So,  the  same  decision  was  made  in  Northey  v.  Strange,  1  Pr.  Wms. 
341 ;  and  Weld  v.  Bradberry,  2  Vera,  t05,  in  which  cases,  under  a  be- 
quest to  children  and  grandchildren  equally,  all  look  p)er  capita. 

In  all  these  cases  there  was  no  legatee  to  come  into  being,  or  to  be 
ascertained — they  all  might  have  been  named  in  the  will,  and  took  as  if 
they  had  been  so  named.  But  in  our  case,  the  children  were  not  ascer- 
tained— they  could  not  have  been  named  in  the  will,  without  changing 
the  entire  construction,  and  they  must,  therefore  take  among  themselves 
collectively,  a  moiety. 

If  Lord  King  doubted,  and  Buller  thought  his  decision  wrong,  in  the 
case  where  ascertained  individuals  were  included  in  nomen  coUectivum, 
there  can  be  no  reason  for  not  rejecting  the  rule,  in  a  case  where  the  desig- 
nation, from  necessity,  must  mean  a  class  and  not  individuals. 

This  construction  is  one  which  will,  in  ninety-nine  cases  out  of  a  hun- 
dred, accord  with  the  testator's  intention.  Wills  are  the  result  of  natural 
affection  or  friendship.  The  object  is  always  a  person  in  being ;  and  the 
children  unborn  are  provided  for  only  on  account  of  the  testator's  affec- 
tion or  friendship  for  the  parent.  This  would  uniformly  lead  to  an 
appropriation  by  classes;  and  exclude  *the  idea,  that  the  amount  r^^o-io 
of  interest  which  each  should  take,  should  depend  on  the  fecundity  '- 
of  the  different  objects  of  the  testator's  bounty. 

But  suppose  the  construction  to  be  a  doubtful  one.  It  is  an  ambiguity 
of  intention,  which  may  possibly  be  removed  by  parol,  and  if  it  can,  the 
evidence  is  full  as  to  the  real  intention.  Mr.  Roberts  in  his  treatise  on 
Wills,  470,  says,  "  It  seems  to  be  a  settled  practice  of  the  Courts,  that  if 
they  can,  from  the  lights  furnished  in  the  instrument  itself,  gain  some 
foundation  of  conjectural  inference,  they  will  look  out  of  the  instrument, 
to  the  situation  of  the  parties  concerned;"  and  again,  "  If  matter  can  be 
collected  from  the  general  context  of  the  instrument,  the  approach  to  an 
ambiguity  patent,  in  a  particular  clause,  will  not  exclude  the  admission  of 
parol  evidence,  provided  it  tends  to  confirm  the  collective  inference  from 
the  context."  Now  the  conjectural  inference  which  we  collect  from  this 
will,  is  that  by  offspring  here,  was  meant  a  class  of  individuals,  who  were 
the  issue  of  one  niece,  and  intended  collectively  to  take  an  equal  share 
with  A.  Creyon,  the  son  of  another  niece.  Had  the  testator  intended 
otherwise,  he  would  have  named  the  individuals  he  intended.     But  he 


218  SOUTH  CAROLINA    EQUITY    REPORTS.  [*318 

could  not  name  them — for  he  intended  that  her  after-born  children  should 
take.  But  it  could  hardly  be  supposed  that  he  would  have  intended,  that 
while  he  left  open  for  admission  of  all  Mrs.  Cole's  children,  born  up  to 
the  time  of  distribution,  yet  that  he  intended  that  A.  Creyon,  whom  he 
specifically  named,  should  have  his  share  enhanced  or  diminished,  by  the 
deaths  or  births  of  the  other  family.  Such  an  intention  will  not  be  sup- 
posed unless  it  is  expressed  in  unambiguous  terms.  But  in  this  will 
"  children"  do  mean  a  class ;  and  whether  he  intended  that  class  should 
take  an  equal  share  with  Creyon,  or  that  each  individual  of  that  class  should 
take  an  equal  share  with  him,  is  doubtful.  There  may  be  a  strong  infer- 
ence, that  the  equal  share  was  only  intended  for  the  class  ;  and  to  strengthen 
this  inference,  the  parol  testimony  is  offered. 

In  Ulrich  v.  Litchfield,  2  Atk.  312,  the  ambiguity  was  on  the  face  of 
*Q1Q1  ^^®  instrument ;  but  there  was  a  bearing  in  *the  will  that  assisted 
-'  the  sense,  and  parol  evidence  was  received  to  decide  the  prepon- 
derance. Here  the  uncertainty  is,  whether  Mrs.  Cole's  "  offspring,"  were 
intended  to  take  individually  or  as  a  class — and  the  parol  evidence  was 
given  to  decide  which.  It  is  here  to  be  observed,  that  the  real  question 
is,  do  they  take  individually  or  as  a  class  ?  not  whether  they  take  per 
capita  ov per  stirpes'^  That  doubt  can  only  arise,  when  the  question  is, 
do  they  take  sui  juris,  or  in  jure  representationis  ?  Under  this  will  they 
take  sui  juris,  and  the  mother  is  only  named  as  the  designation  of  the 
class,  or  of  the  individuals  of  which  it  is  composed,  and  the  word  lends  no 
light  as  to  which  was  meant. 

Where  there  are  words  used  in  a  will,  that  are  equally  susceptible  of 
two  distinct  meanings,  shall  both  be  rejected,  or  shall  extrinsic  evidence 
be  admitted,  to  show  which  was  intended  ?  Suppose  the  word  "  let," 
should  be  used  in  an  instrument,  so  as,  that  if  the  clause  is  taken  by  itself, 
it  is  uncertain  whether  it  mean  to  permit  or  to  hinder.  How  is  the  diffi- 
culty to  be  solved  ?  Look  to  the  context — that  furnishes  some  aid  ;  but 
is  not  entirely  conclusive.  Shall  not  the  preponderance  be  decided  by 
parol  ?  Is  it  not  precisely  the  case,  where  a  will  is  made  in  favor  of  J. 
A.,  and  there  are  two  J.  A.'s,  and  parol  evidence  is  received  to  show 
which  ? 

Here  the  will,  all  taken  together,  shows  that  the  word  "offspring," 
means  a  class  of  persons,  who  will  be  in  esse  at  the  death  of  the  testator's 
widow,  and  the  inference  is,  that  they  are  to  take  as  a  class,  and  we  aid 
that  inference  by  parol. 

Harper,  J.  I  am  inclined  to  think  the  defendant's  counsel  correct 
in  his  conclusion,  that  if  there  be  a  bequest  to  an  ascertained  individual 
and  to  a  class  of  unascertained  individuals,  (to  be  ascertained  at  any 
future  time  after  the  death  of  the  testator)  it  vests  one  half  in  the  said 
individual,  and  the  other  half  in  the  individuals  of  the  class  collectively 
when  they  are  ascertained.  The  cases  sufficiently  settle  that  if  there  be 
a  bequest  to  the  children  of  A.  and  the  children  of  B.,  or  to  A.  and  the 
children  of  B.,  they  take  per  capita.  This  rule  however  is  entirely  arbi- 
*3201  ^'"'^^T'  ^"*^  ^  ^"^  "*^^  ^"^'^  t'^^^  if  ^  ^different  rule  had  been  adopted, 
the  intention  of  testators  would  not  have  been  more  frequently 
effected.  In  this  particular  case,  independently  of  the  parol  testimony,  I 
think  that  we  should  be  most  likely  to  comply  with  the  intention  by  a  dif- 
ferent construction.  The  rule  being  settled,  however,  must  be  adhered  to  ; 


*320]  COLUMBIA,   JUNE,   1833.  219 

but  I  think  the  authorities  relied  on  in  the  argument  of  counsel,  (to  which  I 
1  refer)  go  far  to  make  out  an  exception,  when  the  titles  of  the  devisees 
are  to  accrue  at  different  times.  In  addition  to  the  authorities  quoted,  I 
may  also  refer  to  that  from  Sarame's  case,  13  Co.  57.  "And  therefore 
if  a  grant  be  made  by  deed  to  one  man  for  term  of  life,  the  remainder  to 
the  right  heirs  of  A.  and  B.  in  fee,  and  A.  hath  issue  and  dieth,  and 
afterwards  B  hath  issue  and  dieth,  and  then  the  tenant  for  life  dieth ; 
in  that  case,  the  heirs  of  A.  and  B.  are  not  joint  tenants,  nor  shall  join 
in  a  scire  faciciH  to  execute  the  fine  ;  (24  E.  3  ;  Joinder  in  Action,  10,) 
because,  that  although  the  remainder  be  limited  by  one  fine  and  by  joint 
w^ords,  yet  because  that  by  the  death  of  A.  the  remainder  as  to  the  moiety 
vested  in  his  heir,  and  by  the  death  of  B.  the  remainder  vested  in  his  heir, 
at  several  times,  they  cannot  be  joint  tenants."  With  respect  to  this 
authority,  it  may  be  observed  that  it  was  the  vesting  in  interest,  and  not 
the  vesting  in  possession,  which  prevented  the  joint  tenancy.  At  the 
death  of  the  tenant  for  life,  when  the  property  vested  in  possession,  A.  and 
B.  being  both  dead,  their  heirs  were  ascertained,  and  there  was  nothing 
to  prevent  their  taking  jointly. 

In  the  present  case,  I  think  it  cannot  be  doubted  that  the  remainder 
to  the  defendant  Creyon  was  vested  in  interest  immediately  on  the  death 
of  the  testator.  Feme  defines  the  fourth  class  of  contingent  remainders 
to  be  "where  the  person  to  whom  the  remainder  is  limited  is  not  yet 
ascertained,  or  not  yet  in  being."  Certainly  Alexander  Creyon,  named 
in  the  will,  was  a  person  ascertained  and  in  being,  and  might  have  dis- 
posed of  his  remainder,  or  if  he  had  died  during  the  continuance  of  the 
life  estate,  must  have  transmitted  bis  interest  to  his  representatives.  But 
who  the  children  of  Elizabeth  Cole  should  be  at  the  death  of  the  testator's 
widow,  Avas  uncertain  and  unascertained.  It  might  have  happened  that 
all  the  children  living  at  the  time  of  the  testator's  death  had  *died  r^n;^^ 
and  others  had  been  born  before  the  termination  of  the  life  estate. 
It  is  certainly  settled  that  if  an  estate  be  given  to  a  class  of  persons,  as  to 
the  children  of  A.  and  B.  after  a  life  estate ;  or  if  the  division  be  post- 
poned, as  until  the  eldest  shall  arrive  at  the  age  of  twenty-one,  all  the 
children  born  before  the  event  happens,  will  be  entitled.  It  has  been 
supposed  that  in  such  case  the  property  should  be  considered  vested  in 
the  children  living  at  the  time  of  testator's  death,  so  that  in  case  of  their 
death,  they  should  transmit  it  to  their  representatives,  and  only  so  tar 
liable  to  be  devested,  as  that  the  estate  should  open  and  let  in  children 
born  before  the  vesting  in  possession  ;  and  accordingly  in  the  case  ot 
Devisme  v.  Mello,  1  Br.  C.  C.  537,  where  £4,000  were  given  to  L.  for 
life,  remainder  to  the  children  of  W.,  and  one  of  the  children  of  W.  living 
at  the  death  of  the  testator  died  during  the  continuance  of  the  life  estate, 
it  was  held  that  her  representative  was  entitled.  But  the  point  seems  not 
to  have  been  particularly  considered,  and  I  think  the  decision  is  opposed 
to  the  current  of  authorities  and  to  the  reason  and  intention.  In  (filmore 
V.  Severn,  1  Br.  C.  C.  581,  where  a  legacy  was  given  to  the  children  of  a 
sister,  to  be  paid  them  as  they  respectively  attained  the  age  of  twenty-one, 
it  is  said,  that  "as  none  were  entitled  to  a  vented  interest,  the  Court 
ordered  the  money  to  be  paid  into  bank."  This,  however,  may  have  been 
merely  an  expression  of  the  Reporter.  In  Ymer  v  I'rancis,  -  jm'.  l-.  k.. 
658,  where  a  legacy  was  given  to  children  of  a  sister,  and  one  of  them 


220  SOUTH    CAROLINA    EQUITY    REPORTS.  [*32l 

died  in  the  testator's  lifetime,  it  was  contended  that  that  cliild's  portion 
of  the  legacy  luid  lapsed  ;  but  it  was  held  that  the  testator  must  have 
meant  those  who  should  be  children  at  the  time  of  his  death.  Now,  if  a 
legacy  be  given  expressly  at  a  future  period,  subsequent  to  testator's 
death,  there  seems  to  be  the  same  or  a  stronger  reason  for  saying  that  he 
must  have  meant  those  who  should  be  children  at  the  time  his  gift  is  to 
take  effect.  In  Godfrey  v.  Davis,  6  Ves.  49,  the  Master  of  tlie  Rolls 
expresses  himself  thus:  "Where  the  gift  is  to  all  the  children  of  A.  at 
twenty-one,  if  there  is  no  estate  for  life,  it  will  vest  in  all  the  children 
coming  into  existence,  till  one  attains  the  age  of  twenty-one.  Then  that 
one  has  a  right  to  claim  a  sliare ;  admitting  into  participation  all  the 
*q99-i  children  then  existing  ;*  so  if  it  is  to  a  person  for  life,  and  after  the 
"''^J  death  of  that  person,  then  to  the  children  of  A,  the  intention  is 
marked,  that  until  the  death  of  the  person  entitled  for  life,  no  interest 
vests."  In  Hughes  v.  Hughes,  16  Ves.  256,  where  the  devise  was  to 
trustees,  to  maintain  the  children  of  testator's  three  daughters,  until  the 
younger  should  attain  the  age  of  twenty-one,  and  then  to  distribute  among 
them ;  one  of  the  children  who  was  living  at  the  death  of  the  testator  died 
before  the  period  of  distribution,  and  it  was  held  that  her  representative 
was  not  entitled.  In  this  case,  however,  some  stress  was  laid  on  the  cir- 
cumstance that  the  testator  had  provided  expressly  in  his  will,  that  if  any 
of  the  children  should  die  leaving  children,  the  children  should  stand  in 
the  place  of  the  parent.  The  cases  are  not  so  explicit  as  could  be  wished, 
and  so  far  as  I  have  been  able  to  discover,  I  cannot  say  that  there  is  any 
distinct  rule  on  the  subject.  I  think  it  however  tiie  more  natural  import 
of  the  words,  when  the  bequest  is  to  children  at  the  death  of  the  tenant 
for  life,  that  those  who  then  answer  the  description  of  children,  should  be 
meant.  The  intention  too,  will,  I  think,  in  general  be  best  complied  with 
by  this  construction.  When  property  is  thus  given  to  children,  and  one 
dies  before  the  period  of  distribution,  it  will  commonly  happen  that  his 
brothers  and  sisters  will  be  his  next  of  kin,  and  then  it  will  be  immaterial 
whether  they  take  as  legatees  or  as  next  of  kin  of  the  deceased.  But  it 
may  happen  that  there  will  be  a  father  or  mother  to  take  along  with  them  ; 
and  when  the  testator  has  passed  over  the  parent  and  given  the  whole  to 
the  children,  it  would  seem  to  defeat  his  intention  that  the  parent  should 
at  the  period  of  distribution,  take  any  portion  as  next  of  kin.  When  the 
devise  is  of  real  estate  in  England,  one  brother  would  take  the  whole  of 
the  deceased's  portion  as  heir-at-law;  and  this  would  seem  to  defeat  the 
intention  that  all  the  children  should  take  equally.  There  would  be 
reason  for  making  a  different  construction,  and  probably  a  different  one 
ought  to  be  made,  when  the  child  dying  has  left  children  ;  and  this  also 
to  effectuate  the  intention  ;  for  it  cannot  be  supposed  that  the  testator 
intended  the  object  of  his  bounty  not  to  be  capable  of  transmitting  to  his 
children  so  as  to  provide  for  them. 

5icQgg-i  *The  testator  by  his  will,  after  the  bequest  to  complainants 
-^  and  defendant,  directs  the  property  to  be  I'etaincd  in  the  hands  of 
his  executor  and  executrix  until  they  attain  the  age  of  twenty-one  years 
or  day  of  marriage,  which  shall  first  happen.  According  to  the  con- 
struction we  have  made,  one  moiety  is  given  to  the  defendant  severally. 
To  this  he  will  be  entitled  when  he  attains  the  age  of  twenty-one.  The 
other  moiety  is  given  to  the  complainants  as  a  class.     This  they  will  be 


*323]  COLUMBIA,  JUNE,  1833.  221 

entitled  to  distribute  among  the  children  then  in  esse,  when  the  eldest 
shall  attain  the  age  of  twenty-one. 

The  application  for  partition  was  premature.  The  Chancellor  states 
that  at  the  time  of  the  decree,  the  eldest  of  the  complainants  was  about 
the  age  of  twelve  years  and  the  defendant  about  seventeen.  The  bill  is 
also  informal,  in  that  the  surviving  executor  is  only  a  party  in  the 
character  of  next  friend  of  the  complainants.  Yet  the  parties  were 
entitled  to  come  into  Court  to  have  their  rights  ascertained.  We  are 
unwilling  that  the  bill  should  be  dismissed,  giving  occasion  for  further 
expense  and  litigation. 

It  is  therefore  ordered  and  decreed,  that  the  bill  be  retained  ;  with 
liberty  to  the  defendant,  when  he  shall  have  attained  the  age  of  twenty- 
one,  to  apply  to  the  Court  by  petition  stating  that  fact,  and  praying 
partition  and  distribution  ;  giving  proper  notice  to  the  complainants 
and  the  executor  Henry  Cole ;  and  that  upon  such  application  one 
moiety  of  the  estate  real  and  personal  be  apportioned  and  allotted  to 
him  ;  and  with  like  liberty  to  the  complainants,  wiieu  the  eldest  of  them 
shall  have  attained  the  age  of  twenty-one,  to  apply  for  partition  and 
distribution  among  themselves,  or  such  children  of  Henry  and  Elizabeth 
Cole  as  may  then  be  in  existence. 

Johnson  and  O'Neall,  Js.,  concurred. 


*Wm.   T.  Spann,  and  Elizabeth,  his  wife,  v.  Tyre  Jennings  r^^ooi 
Chs.  G.  Spann,  and  others.  '- 

Conveyance  in  trust  for  the  separate  use  of  the  grantee's  daughter  S.  during  her 
life,  remainder  to  such  child  or  children  of  S.  "as  may  be  then  living,  or  who 
shall  marry,  or  attain  twenty-one  years,"  the  trust  was  executed  in  the  children 
of  S.  on  her  death,  and  the  legal  estate  then  vested  in  them.[*324] 

Where  the  wife,  being  sole  next  of  kin  to  deceased  infants,  and  entitled  to  their 
whole  estate,  and  there  being  no  debts,  before  her  marriage,  took  possession  of  the 
estate  without  administration,  and  the  husband,  after  marriage  had  a  like  posses- 
sion :  field,  that  the  marital  rights  of  the  husband  attached  on  the  personal  estate 
of  the  deceased  children,  and  it  vested  in  him.  [*325] 

This  case  came  to  a  hearing  before  Chancellor  Johnston,  at  Sumter, 
Feb.  1833,  on  the  bill,  answers  and  exhibits,  and  the  following  statement 
of  facts  agreed  to  by  the  parties  : 

Ephraim  Adams,  the  grandfather  of  the  plaintiff  Elizabeth,  on  the  2d 
of  January,  1817,  conveyed  certain  slaves  mentioned  in  the  conveyance 
exhibited  with  the  bill,  to  Daniel  Wade,  "  in  trust  to  and  for  the  sole  and 
separate  use  and  benefit  of  his  daughter  Sarah  O'Cinin,  dnring  her 
natural  life,  and  notwithstanding  her  coverture,  &c.,  that  tlio  same  should 
not  be  liable  to  the  debts  of  her  then  or  any  future  husband,  and  from 
and  after  her  death,  to  the  use  of  such  child  or  cliildren  of  his  said 
daughter  as  may  then  be  living,  or  who  shall  marry,  or  nttain  the  age  of 
twenty-one  years,  lawfully  begotten  by  her  then  husbnnd  Daniel  OXiuin 
junior."  Mrs.  O'Quin  died  in  1818,  leaving  three  children  by  O'tiuin, 
of  whom  the  plaintiff  Elizabeth  is  one  ;  the  other  two  died  shortly  after 


222  SOUTH   CAROLINA    EQUITY   REPORTS.  [*324 

their  mother,  minors,  unmarried,  without  issue  and  intestate,  and  no  one 
has  yet  administered  on  their  estates.  The  plaintiff  Elizabeth  went  into 
the  possesion  of  these  slaves  before  her  marriage  with  James  L.  Spann, 
and  retained  possession  until  that  marriage,  which  took  place  in  1824. 
He  retained  possession  from  the  marriage  until  his  death  in  1827.  The 
main  question  argued  in  the  case,  was  whether  the  marital  rights  of 
James  L.  Spann  attached  on  the  slaves  so  as  to  pass  them  under  his  will. 

The  Chancellor  decreed,  that  the  trust  in  these  slaves  was  executed  in 
the  children  of  Sarah  O'Quin  on  her  death,  and  Mrs.  Spann's  third  part 
thereof  vested  in  her  husband,  he  having  had  them  in  possession  during 
coverture ;  and  that  the  other  two-thirds  vested  in  the  children  now 
deceased,  and  are  subject  to  administration,  and  therefore  did  not  vest  in 
J.  L.  Spann,  the  husband. 

From  this  decree  the  complainants  appeal,  because  the  Chancellor 
decreed  one-third  of  these  slaves  to  the  defendants  ;  and  the  defendants 
appeal,  because  he  did  not  decree  them  the  whole. 

i^oi)r-\  *Harper,  J.  We  concur  with  the  Chancellor,  on  all  the  points 
-J  involved  in  this  case,  except  as  to  the  marital  rights  of  James  L. 
Spann  not  having  attached  on  the  shares  of  the  children  of  Sarah  O'Quin, 
who  died  infants,  leaving  the  plaintiff,  Elizabeth,  their  sole  next  of  kin, 
and  entitled  to  their  whole  estates.  On  that  point  we  think  the  decree 
must  be  modified  on  the  authority  of  the  case  of  Marsh  v.  McXai],(a) 
decided  by  this  Court  at  Columbia,  Jannar}'',  1832.  In  that  case  the 
husband  had  taken  possession,  without  administration,  of  the  estate  to 
which  his  wife  was  exclusively  entitled,  all  the  debts  being  paid,  or  there 
being  no  debts ;  and  it  was  held  that  the  marital  rights  had  attached.  In 
this  case  it  was  agreed  that  the  children  died  at  a  very  early  age,  and 
could  have  owed  no  debts.  James  L.  Spann  was  entitled  to  the 
administration  in  the  name  of  his  wife.  But  to  what  purpose  should  he 
have  administered  ?  There  were  no  debts  to  pay,  and  no  distribution  to 
be  made.  Was  it  simply  that  he  might  take  possession  in  his  own  right  ? 
That  would  have  been  merely  going  through  a  nugatory  ceremony. — Or  if 
any  other  person  had  administered,  could  the  property  have  been  re- 
covered from  him  ?  No — by  going  into  Equity  and  shewing  that  there 
were  no  debts,  and  that  his  wife  was  exclusively  entitled,  a  recovery  at 
law  would  have  been  restrained. (&)  In  every  point  of  view,  then 
administration  would  have  been  superfluous.  He  took  possession  of  the 
two-thirds  derived  from  the  deceased  children,  just  as  he  did  of  the  rest 
of  his  wife's  property,  and  we  think  his  marital  rights  must  be  held  to 
have  attached  on  them. 

The  decree  of  the  Chancellor  is  modified  accordingly. 

Johnson  and  O'Neall,  Js.,  concurred. 

Blanding,  for  the  plaintiffs. 

Mayrant,         contra. 

(a)  Not  reported. 

(b)  If  another  administering  could  recover  the  property  at  law  from  the  husband, 
unless  restrained  by  injunction,  (which  seems  to  be  admitted)  does  it  not  prove 
that  the  legal  estate  had  not  vested  in  the  husband,  and  consequently  that  the 
marital  rights  had  not  attached?  See  Elders  v.  Vauters,  4  Eq.  Uep.  105;  Farly  v. 
Early,  1  M'C.  Ch.  614;  Gregory  v.  Foster,  1  M'C.  Ch,  S24  ;  Bradford  v.  Felder,  2 
M'C.  Ch.  170.  R. 


'326]  COLUMBIA,  JUNE,  1833.  223 


*"Wm.  Spann  v.  Wm.  Stewart,  Sarah  G.  Wright,       -^ 

and  others.  L  ^-^ 

Where  administration  was  granted  to  husband  and  wife  in  right  of  the  wife,  and 
the  administration  bond  was  signed  by  both,  the  wife  is  not  bound  by  the  bond; 
and  after  the  husband's  death,  she  is  not  liable  for  his  devastavit  during  the 
administration;  and  so  much  of  the  estate  as  remains  unchanged  is  subject  to 
partition  between  the  wife  and  the  other  distributees,  the  wife's  interest  therein 
surviving  to  her.  But  as  regards  such  part  of  the  estate  as  the  husband  had 
wasted,  the  wife  is  not  entitled  to  a  share  thereof — and  on  a  bill  filed  by  the 
security  to  the  administration  bond,  against  whom  a  judgment  at  law  had  been 
obtained  for  the  whole  estate,  relief  was  granted  to  this  extent,  and  credit  given 
him  on  the  judgment  for  her  share  of  so  much  of  the  estate  as  had  been 
wasted.  [*33li] 

This  case  was  heard  before  Chancellor  Johnston,  at  Sumter,  February, 
1833.  It  presented  the  following  facts. — Sarah  E  Screven  married  Dr. 
Thomas  W.  Wright,  prior  to  1824.  About  that  year  her  mother,  A. 
Screven  died  intestate,  leaving  Sarah  E.  Wright  her  only  surviving 
child,  but  leaving  grandchildren,  and  possessed  of  a  considerable 
personal  estate,  consisting  of  Bank  stock,  slaves,  furniture,  &c.,  to  one- 
third  of  which  Sarah  E.  Wright  was  entitled,  as  distributee  of  her 
mother.  On  the  9th  day  of  January,  1824,  letters  of  administration 
were  granted  to  her  and  her  husband,  and  the  administration  bond  was 
signed  by  her  as  well  as  her  husband,  with  the  plaintiii'  as  security. — 
Wright,  in  February,  1824,  sold  the  bank  stock,  furniture,  &c.,  and 
received  the  money,  which  amounted  to  $-^,800  including  interest.  Dr. 
Wright  died  about  the  year  1825,  intestate,  and  on  the  17th  February, 
1826,  administration  de  bonis  non  was  granted  to  the  plaintiff  Stewart. 
He  obtained  a  decree  against  J.  Mayrant,  jun.,  administrator  of  Wright, 
for  the  whole  of  A.  Screven's  estate,  and  after  exhausting  Wright's  estate, 
a  considerable  balance  remained  unsatisfied.  To  recover  this  balance, 
suit  was  brought  at  law,  against  Spann,  the  security  of  the  administra- 
tion bond,  and  judgment  obtained,  on  the  plea  of  non  est  facium — 
Before  any  writ  of  inquiry  was  executed,  this  bill  was  filed  to  restrain 
Stewart  from  proceeding  at  law,  and  to  subject  Sarah  E  Wright,  to  the 
demand,  in  exoneration  of  her  security. 

On  the  hearing,  the  plaintiff's  counsel  contended, 

1.  That  Sarah  E.  Wright  was  bound  for  all  acts  done  during 
coverture,  respecting  the  administration,  whether  done  by  herself  or  her 
husband,  and  to  indemnify  the  plaintiff  to  the  whole  extent,  he  being  her 
security  :  or,  in  other  words,  that  the  plaintiff  was  entitled  to  credit,  on 
the  decree  against  the  administrator  of  Wright,  to  the  extent  of  Mrs. 
Wright's  distributive  share  of  Mrs.  Screven's  estate  ;  *and  that  a  ^327 
decree  should  go  against  her  for  the  balance  due  on  the  adminis- 
tration, after  exhausting  Dr.  Wright's  estate. 

2.  If  not  entitled  to  a  decree  for  this,  then  that  the  plaintiff  should  be 
indemnified  by  crediting  or  enjoining  the  administrator's  jiulgnuMit,  to  an 
amount  equal  to  the  entire  distributive  share  of  3Ir.-;.  Wright,  whether 
reduced  into  possession  by  the  husband,  or  remaining  in  action  at  his 
death. 


224  SOUTH    CAROLINA    EQUITY    REPORTS.  [*327 

3.  Or,  that  he  should  be  iiuleranified,  by  credit  or  injunction,  for  so 
much  of  her  share  as  the  husband  had  reduced  under  his  marital  rights; 
and  that  this  extended  to  one-third  of  all  the  personal  estate  of  the  intes- 
tate, which  he  had  converted  into  actual  cash,  or  received  in  negro  hire. 

4.  Or,  failing  in  this,  that  his  indemnity  should  extend  to  all  the  interest 
which  had  accrued  on  one-third  of  the  cash  received  by  Dr.  Wright,  and 
the  hire  of  the  slaves  of  the  intestate  during  coverture. 

The  Chancellor  decreed  against  all  these  claims,  and  dismissed  the  bill 
as  to  Sarah  E.  Wright,  but  retained  it  against  Stewart,  administrator  de 
bonis  non,  till  an  account. 

The  defendant  appealed  from  this  decision,  and  now  moves  this  Court 
for  a  reversal  of  the  decree,  discharging  Sarah  E.  Wright ;  and  relies  on 
the  same  grounds  he  took  on  the  Circuit. 

Blancling,  for  the  appellant,  insisted  on  the  following  positions.  1st. 
That  Mrs.  Wright  is  bound  by  the  administration  bond.  2d.  That  if  she 
is  not  bound  by  the  bond,  she  is  liable  for  the  devastavits  of  that  adminis- 
tration. 3d.  That  if  not  so  bound,  her  third  part  of  the  estate  had  been 
converted  by  her  husband  to  his  own  use  by  her  consent,  and  she  has  no 
equity  to  call  it  back.  4th.  The  husband  having  received  the  interest 
and  hire  of  her  estate  while  he  supported  her,  she  cannot  make  his  estate 
liable  for  the  same. 

1.  Mrs.  Wright  as  only  daughter  of  the  intestate  was  exclusively  enti- 
tled to  the  adraniistration.  3rEd.  3  C.  11  :  3  Bac.  Ab.  54,  tit.  Ex'or  & 
Adm'or  F.  Raym,  498;  P.  L.  492,  Sec.  IG;  and  this  right  is  so  perfect 
that  if  the  Ordinary  refuse  to  grant  it,  a  mandamus  lies,  4  Bacon,  Ab.  tit, 
-^090-1  Mandamus,  *D.  Having  the  right  she  had  the  legal  capacity,  with 
'^"'  -J  the  consent  of  her  husl^and,  to  administer.  2  Roper  Ilnsb.  and 
Wife,  97;  and  this  consent  being  given,  her  right  and  legal  capacity  be- 
came perfect.  It  is  admitted  that  the  common  law  rule  is  that  a  feme 
covert  cannot  bind  herself  by  bond  ;  but  the  Act  of  1789,  P.  L.  493, 
declares  that  every  administrator  shall  enter  into  bond  with  security,  and 
differs  herein  from  the  British  statute,  22  and  23  Car.  2  C.  10,  3  Bac.  ab. 
46,  Exo'r  and  Adm'r,  which  merely  requires  that  the  Ordinary  "shall 
take  sufficient  bond  with  security,"  but  does  not  direct  from  ivhom  they 
shall  be  taken  ;  and  hence  it  has  been  decided  that  the  husband  shall  take 
the  letters  in  the  name  of  his  wife,  but  give  the  bond  himself.  The  hus- 
band has  no  right  but  through  her,  and  if  she  refuse  to  administer,  he 
cannot,  and  the  right  passes  to  the  next  of  kin.  Under  our  Act  which 
requires  every  adminidrator  to  enter  into  the  bond,  either  there  can  be 
no  administration  by  the  wife,  although  by  law  entitled  to  it  and  legally 
competent  to  act,  or  she  must  join  in  the  bond.  The  last  clause  of  the 
16th  Section  of  the  Act  of  1789  proves  that  it  was  not  intended  to  deprive 
a  feme  covert  of  administration,  for  it  provides,  that  where  a  widow 
administratrix  marries,  her  letters  may  be  revoked  and  one  of  the  next  of 
kin  joined  ivith  her.  A  feme  covert  then,  since  the  Act  of  1789,  may 
administer,  and  it  follows  that  she  may  give  a  bond.  And  such  has  been 
the  practice  throughout  the  State,  but  especially  in  Charleston,  where 
the  Ordinary's  Office  was  first  established,  and  filled  by  an  eminent 
lawyer. 

The  Chancellor,  however,  says,  that  the  argument  proves  too  much, 
that  infants  and  idiots  may  administer.     With  deference  be  it  said,  there 


*32S]  COLUMBIA,  JUNE,  1833.  225 

is  a  distinction  in  the  cases — for  an  infant  or  idiot  has  not  the  legal  capa- 
city to  administer,  3  Bacon  Ab.  14,  Ex'or  and  Adni'or,  B.  3.  Nor  is 
there  anything  unreasonable  in  requiring  a  married  woman  to  join  in  the 
bond,  for  she  is  always  entitled  to  a  part  of  the  estate,  and  the  question 
had  been  agitated,  whether  she  was  not  liable  for  the  devastavit  of  her 
husband — whether  the  letters  were  granted  before  or  after  marriage.  The 
Act  settled  the  question,  and  at  the  same  time  gave  the  devastavit,  which 
was  but  a  tort,  before  the  character  of  a  specialty.  And  a  good  r^ogq 
*reason  for  requiring  her  to  join  in  the  bond,  is  that  thereby  the  ■- 
security  is  protected  from  being  called  on  by  her,  for  her  estate  wasted 
by  her  husband,  with  her  own  consent,  and  the  bond,  so  far  as  the  secu- 
rity is  concerned,  becomes  the  act  by  which  her  interest  in  the  estate  is 
vested  in  her  husband,  and  cuts  up  the  enquiry  where  there  was  that 
legal  reduction  into  possession  by  which  the  marital  rights  would  attach. 

2.  But  suppose  the  wife's  bond  void — is  she  bound  for  the  devastavits 
of  her  husband,  who  administered  in  her  right  with  her  consent  ?  In 
this  view  of  the  case,  the  Court  must  reform  the  bond  by  considering  her 
name  as  stricken  out  of  it,  and  the  letters  of  administration,  by  striking 
out  his.  For  if  we  are  governed  by  the  law  of  England,  the  letters 
should  have  been  granted  to  her,  and  the  bond  given  by  him.  The  reason 
why  she  is  liable  for  her  husband's  devastavits  is  obvious.  On  his  death 
she  is  sole  administratrix  ;  persons  having  claims  against  the  estate  must 
sue  her  alone ;  and  who  would  pretend  that  she  could  plead  plene  ad- 
mmistravit,  that  her  husband,  as  her  agent  in  the  administration,  had 
consumed  the  whole  estate  ?  If  the  demands  are  legal  ones,  she  must  be 
charged  at  law  for  the  waste  of  her  husband ;  if  they  are  equitable,  she 
must  be  charged  in  equity,  as  administratrix.  Beyond  this  it  is  admitted 
the  legal  and  equitable  creditors  have  a  further  claim  :  i.  e.  if  she  be  in- 
solvent, her  husband's  estate  may  be  charged,  in  equity,  (not  at  law) 
with  their  demands,  so  far  as  his  estate  has  been  benefitted  by  the  estate 
he  has  rendered  insolvent.  This  is  the  clear  legal  reasoning,  and  it  is 
supported  by  authority.  See  the  whole  doctrine  stated  in  1  Roper's 
Husband  and  Wife,  193. 

!N"o  one  can  doubt  as  to  her  liability  to  creditors,  whose  claims  are 
at  law.  But  the  complainant  here  represents  the  distributees  of  Mrs, 
Screven,  and,  it  is  said,  must  come  into  equity,  and  that  there  a  different 
rule  may  prevail.  She  survived  her  husband — administration  had  been 
granted  with  her  consent — it  survived,  and  she  could  not  renounce  it. 
Had  the  distributees  filed  a  bill  against  her  alone,  charging  her  with  the 
whole  estate,  could  she  reply  that  *the  husband,  acting  in  her  right,  r*y3Q 
had  destroyed  the  whole  estate,  and  that  they  must  look  to  his 
estate  ?  Suppose  to  this  it  is  answered,  that  his  estate  is  insolvent,  are 
the  distributees  without  redress  ?  This  is  the  case  before  the  Court.  The 
security  to  the  administration  bond  has  the  right  to  stand  in  the  place  of 
the  distributees,  and  whomsoever  they  can  charge  he  can  chajge.  Ihis 
doctrine  is  laid  down  in  Adair  v.  Mann,  1  Sch.  &  Lef.  257  ;  1  Rop. 
Husb.  and  Wife,  194. 

But  it  is  said,  that  there  is  a  distinction,  and  but  three  classes  of  cases 

must  be  regarded  :  1st,  where  the  wife  administered  dum  sola.    2d,  where 

the  right  accrued  to  her  dum  sola,  and  administration  was  granted  during 

coverture.     3d,  where  the  right  and  administration  both  arose  under 

YoL.  I. — 15 


226  SOUTH    CAROLINA   EQUITY    REPORTS.  [*330 

coverture.  In  the  first  case,  no  one  ever  doubted  she  was  bound  by  the 
bond,  and  consequently  bound  to  relieve  her  securities.  In  the  two  last 
cases,  the  distinction  is  without  a  difference — see  Roper's  Husband  and 
Wife,  193,  194.  The  case  of  Beynon  v.  Collins,  2  Brown  C,  C.  323, 
merely  settled  the  question,  whether  Collins,  the  trustee  in  the  settlement, 
having  sold  the  settled  estate  and  paid  the  money  over  to  the  husband, 
was  liable  to  the  wife  on  the  husband's  insolvency.  So  that  all  that  Lord 
Thurlow  said  on  this  point  is  extra-judicial ;  or,  as  Lord  Redesdale  calls 
it,  "a  sort  of  dictum."  But  this  dictum  is  in  accordance  with  Lord 
Redesdale's  opinion,  and  that  laid  down  by  Roper,  who  says  that  if  her 
adnjinistration  by  the  husband  is  without  the  consent  of  the  wife,  and  she 
does  intermeddle,  on  his  death  she  may  renounce.  Bellew  v.  Scott,  1 
•Strange,  440,  a  return  that  the  husband  and  wife  wasted  as  executor  and 
•executrix  was  held  good,  and  the  judgment  was  against  both.  All  the 
•cases  show  that  she  is  administratrix  during  her  husband's  life-time,  and 
may  continue  so,  whether  she  can  renounce  or  not.  What  would  be  the 
•effect  of  a  renunciation  ?  Had  a  suit  been  brought  in  the  husband's  life- 
time, the  judgment  would  have  been  against  both.  Her  renunciation, 
■therefore,  after  his  death,  can  have  no  other  effect  than  to  release  her  from 
the  administration,  not  from  acts  already  done. 

^oqi  I       *3.  Has  Mi's.  Wright's  share  of  Mrs.  Screven's  estate  passed 
-^  into  the  hands  of  her  husband,  with  her  consent,  so  that  she  can- 
not call  it  back  from  his  security  ? 

Spann  was  no  party  to  any  of  the  suits  in  which  Mrs.  Wright  estab- 
lished her  rights  against  her  husband's  estate,  and  as  against  his  security 
the  case  is  the  same  as  if  for  the  first  time  she  was  now  making  her  claim  ; 
and  the  plaintiff  is  entitled  to  all  the  equities  of  the  administration  of  her 
husband,  and  the  case  will  be  argued  as  if  she  was  now  plaintiff  against 
that  administrator.  He  administered  with  her  consent,  and  before  the 
act  of  1824,  which  renders  void  a  sale  by  an  administrator  unless  by  the 
order  of  the  Ordinary,  he  converted  all  the  estate  by  actual  sale,  into 
cash,  except  the  slaves,  and  their  hire  he  received,  and  there  were  no 
debts  to  be  paid  ;  and  this  constitutes  her  claim  against  his  estate.  Can 
she  call  back  her  share  of  his  estate  from  his  administration  ?  If  she  can 
do  it  now,  she  could  have  demanded  a  settlement  against  him  in  his  life- 
time, and  if  it  is  an  equity  now,  it  was  an  equity  then.  '  Murray  v. 
Elibank,  10  Ves.  90,  the  Lord  Chancellor  says,  "the  husband,  when  he 
can,  is  entitled  to  lay  hold  of  the  wife's  property,  and  this  Court  will  not 
interfere."  And  Mr.  Clancy,  (page  122)  says  "  if  he  has  once  acquired 
the  possession  of  the  property,  although  it  should  be  of  an  equitable 
nature,  this  Court  will  leave  him  in  the  full  enjoyment  of  it."  So  that 
the  wife's  claim  only  attaches  on  that  part  of  her  personal  estate  which 
the  husband  can  acquire  in  no  other  way  than  by  suit  in  Equity.  Now 
could  not  Wright  have  held  his  wife's  third  part  of  this  money  ?  No 
suit  in  Equity  was  necessary,  and  in  such  suit  he  must  have  been  both 
plaintiff  and  defendant.  But  again. — If  the  husband  and  wife,  being 
administrators,  and  he  does  an  act  which  amounts  to  a  devastavit,  it  vests 
the  legal  estate  in  him. — So  that  Mrs.  Wright,  as  administratrix,  could 
not  now  recover  the  property.  See  Jones  v.  M'Neil,  1  Hill,  96  ;  1  Bos. 
&  Pul.  293.  In  Arnold  v.  Bidgood,  Cro.  Jac.  318,  the  husband  was 
possessed  of  a  lease  in  right  of  his  wife,  executrix,  which  he  sold,  and  it 


*331J  COLUMBIA,  JUNE,  1833.  227 

was  held,  that  it  passed  to  the  grantee.     See  also   2  Black.   Rep.  801. 
And  so  if  the  husband  alter  the  nature  of  the  debt  to  the  wife,  e.xecntri.x 
*he  alone  may  bring  an  action  to  recover  it.     See  the  cases  col-  ^^ 
lected  in  1  Roper,  Husband  and  Wife,   186.     The  debt  due  in  L  ^^^ 
this  case  was  Bank  stock,  which  the  husband  converted  into  money. 

4.  The  interest  on  Mrs.  Wright's  third  part  of  the  estate,  should  be  dis- 
counted. If  she  had  tiled  a  bill  for  a  settlement,  would  the  Court  have 
ordered  tire  interest  to  be  settled  ?     1  Roper's  Husband  and  Wife,  272. 

C.  &  W.  Mayrant,  contra,  as  to  the  first  ground,  contended,  that  a 
feme  covert  cannot  execute  a  deed,  and  that  her  contracts  are  void  in 
Law  and  Equity  ;  and  cited  and  relied  on  the  case  of  Edwards  v.  Si)ann, 
decided  by  this  Court,  in  18ol  ;  and  22  Car.  2,  c.  10;  3  Bacon,  Tit. 
Ex'ors  &  Adra'rs,  p.  6  ;  John  v.  John,  11  Yes.  531  ;  3  Bl.  Rep.  620. 
As  regards  the  liability  of  the  wife,  for  the  devastavit  of  the  husband, 
they  argued  that  the  wife  could  not  assent  to  the  administration,  and 
that  she  is  not  liable  for  a  devastavit  unless  she  continues  the  adminis- 
tration after  her  husband's  death.  1  Sch.  &  Lef  266.  And  on  the 
question  of  reduction  into  possession,  they  insisted,  that  the  decree 
against  Wright's  administrator  fixing  the  liability  of  his  estate,  concludes 
this  question.  On  this  question,  they  cited  and  relied  on  2  M'C.  Ch. 
Rep.  433  ;  3  Eq.  Rep.  160. 

CNeall,  J.  We  concur  in  opinion  with  the  Chancellor,  that  the 
defendant  Sarah  E.  Wright  is  not  bound  by  the  administration  bond 
executed  by  her  during  coverture,  and  that  she  is  not  liable  to  account 
to  the  complainant  for  any  devastavit  committed  by  her  husband.  Dr. 
Wright,  in  administering  the  estate  of  Mrs.  Screven.  The  case  of 
Edwards  u.  Spann, (a)  decided  by  this  Court,  May  Term,  1831,  is  an 
authority  directly  in  support  of  the  Chancellor's  decision.  We  also  agree 
with  the  Chancellor  that  the  whole  distributive  share  of  Mrs.  Wright  in 
the  estate  of  her  mother,  could  not  be  considered  as  reduced  into  the 
possession  of  her  husband  during  coverture.  So  much  of  tlie  )iro)>prty 
of  Mrs.  Screven  at  the  death  of  Dr.  Wright  as  remained  unchanged, (/>) 
was  ''liable  to  be  partitioned  between  Mrs.  Wright  and  the  r^^ooo 
other  distributees  ;  her  share  or  interest  in  it,  was  therefore  an  ^  ^ 
equitable  chose  in  action  which  survived  to  her.  The  cases  referred  to 
by  the  Chancellor,  and  the  cases  of  Schuyler  v.  Hoyle,  5  John  C.  R.  196  ; 
Blount  V.  Bestland,  5  Ves.  515  ;  Wildman  v.  Wildman,  9  Ves.  174,  and 
Baker  v.  Hall,  12  Yes.  497,  fully  sustain  this  position  and  conclusion. 

But  we  differ  with  the  Chancellor,  in  his  conclusion  that  the  com- 
plainant, the  security  of  the  administrator,  is  liable  for  the  share  of  ^Nlrs. 
Wright  of  that  portion  of  her  mother's  estate  which  was  wasted  and 
consumed  by  her  husband.     It  seems  to   me  that  when  the  estate  of  an 

(«)   Not  reported. 

(6)  The  only  property  remainina;  unchniiged  was  the  negroes:  niul  nccordinp  to 
the  doctrine  of  Spann  v.  .Jennings  (aiUe,  o2l)  the  marital  rights  would  have  attached 
on  them  if  the  wife  had  h^cn  soldi/  entitled  to  them— the  grounds  of  distinctinii 
between  that  case  and  this  being  that  tiiere  the  wife  was  soMy  entitled  to  tlie  estate, 
and  here  J'/intfu  with  others,  and  that  lierc  there  was  administration  by  the  husband, 
whilst  there  there  was  noue.  15- 


228  SOUTH    CAEOLINA   EQUITY    REPORTS.  [*333 

intestate  is  sold,  and  converted  into  money  or  notes  and  obligations  to 
the  administrator  for  the  proceeds,  that  so  far  as  his  wife  may  have  an 
interest  in  the  property  thus  changed,  it  is  to  all  interests  and  purposes  a 
reduction  into  possession.  The  money,  or  notes  or  obligations  into 
which  it  is  converted,  is  at  law  his  own  ;  in  equity,  when  they  could  be 
traced  in  specie,  and  the  administrator  was  dead  or  insolvent,  they  might 
be  followed  at  the  instance  of  a  creditor  or  a  distributee  who  was  a 
stranger  to  the  administrator,  as  assets  of  the  estate.  But  this  is  the 
utmost  extent  to  which  Equity  could  go  in  preserving  the  proceeds  as  the 
estate.  The  instant  they  cease  to  be  capable  of  being  traced,  the 
administrator's  liability  to  account  for  them  is  all  which  can  be  looked  to 
by  either  creditors  or  distributees.  Could  the  husband  during  coverture 
have  been  compelled  to  account  for  his  wife's  interest  in  the  fund  which  he 
had  wasted  ?  I  apprehend  he  could  not.  For  he  had  the  right  to  receive 
it  as  husband,  or  even  release  it.  If  he  could  not  be  compelled  to  account 
for  it,  and  having  the  actual  possession,  it  is  plain  that  there  was  nothing 
to  survive  to  the  wife  in  this  respect.  Her  right  pro  fanto  had  been  con- 
sumed, and  consequently  reduced  into  possession  by  the  husband. 

But  be  this  view  correct  or  not,  and  I  think  it  is,  both  on  reason  and 
on  the  authority  of  the  cases  of  Hix  r.  Cox,  Marsh  &  Nail, (a)  and  Spann 
V.  Jennings  &  Spann  executors,  decided  by  this  Court,  (ante,  324.)  still 
^r,q_) -|  the  complainant  is  not  liable  *for  Mrs.  Wright's  share  of  that  part 
"^  -J  of  the  estate  of  her  mother  which  was  wasted  by  her  husband,  Dr. 
Wright.  No  case  can  be  found  in  which  the  wife  was  held  to  be  entitled  to 
have  an  account  from  her  deceased  husband's  representatives  for  so  much  of 
her  choses  in  action  as  were  received  by  him  and  wasted  :  the  utmost  extent 
of  her  rights  by  survivorship  is  to  the  undisposed  residuum.  This  was  the 
case  in  Schuyler  i'.  Hoyle,  and  Baker  v.  Hall.  The  fact  that  the  husband 
is  the  administrator,  and  acting  in  a  trust  capacity,  cannot  alter  the  case. 
His  devastavit  arises,  it  is  true,  from  his  powers  as  administrator,  but  it 
is  a  personal  wrong  for  which  he  is  personally  liable.  It  is  the  con- 
version of  the  testator's  or  intestate's  goods  and  chattels,  rights  and 
credits  to  his  own  use.  This  is  wrongful,  as  against -the  creditors  and 
distributees,  over  whose  rights  he  has  no  control.  But  over  the  rights 
of  his  wife,  in  action,  he  has  the  right  to  reduce  them  into  possession, 
and  as  against  her  there  can  be  no  devastavit ;  for  he  has  the  right  to 
receive  her  interest  and  apply  it  as  his  own.  If  Dr.  AVright  is  not  liable 
to  account  for  the  devastavit  committed,  so  far  as  his  wife's  interest  in  the 
same  is  concerned,  it  follows  that  the  complainant  is  entitled  so  far  to  the 
relief  which  he  seeks.  For  as  security  he  is  liable  as  far,  and  no  farther, 
than  his  principal. 

It  is  ordered  and  decreed,  that  the  Chancellor's  decree  be  so  far  modi- 
fied as  to  allow  the  complainant  credit  on  the  judgment  recovered  against 
him  in  the  name  of  the  Ordinary  on  the  administration  bond,  for  Mrs. 
Wright's  one-third  part  of  so  much  of  the  personal  estate  of  Mrs.  Screven 
as  was  consumed  and  wasted  by  her  husband,  Dr.  Wright,  and  in  all 
other  respects  that  his  decree  be  affirmed. 

Johnson  and  Harper,  Js.,  concurred. 


(a)  Not  reported. 


•335]  COLUMBIA,  JUNE,  1833.  229 


*Stuart  Perry  v.  Wm.  Nixon  and  Jas.  W.  Tate.         [*335 

A  creditor  who  has  obtained  judgment,  sued  out  execution  and  levied  it  on  property 
in  which  the  debtor  has  the  equitable  but  not  the  legal  estate,  is  entitled  to  the 
aid  of  the  Court  of  Equity,  to  make  the  property  available  in  payment  of  his 
demand.  [*336] 

The  defendant,  Tate,  being  entitled  for  life  to  the  profits  of  an  estate, 
held  by  the  defendant  Nixon,  as  trustee,  contracted  a  debt  to  the  plaintiff 
for  the  support  of  his  family,  on  which  he  confessed  judgment.  The 
plaintiff  sued  out  execution,  and  levied  on  the  trust  property,  wiien  the 
defendants  filed  a  bill  and  obtained  an  injunction.  The  plaintiff  then 
filed  this  bill,  to  subject  the  property  to  tlie  payment  of  his  debt  ;  and 
the  injunction  was  dissolved,  and  the  defendant's  bilt  dismissed.  In  the 
meantime  Tate  left  the  State  ;  and  it  was  admitted  that  he  had  no  other 
property. 

The  case  was  heard  by  Chancellor  De  Saussure,  at  Camden,  July, 
1832,  who  by  a  decretal  order,  directed  the  trustee  to  pay  the  plaintiff's 
debt,  out  of  the  trust  estate  in  his  hands. 

From  this  decree  the  defendants  appealed  on  the  grounds  : 

1.  That  it  was  neither  alleged  in  the  bill,  nor  proved,  that  the  plain- 
tiff could  not  enforce  execution  at  law — and  there  was  adequate  remedy 
at  law,  by  compelling  Tate  to  assign  under  a  ca.  sa.  ;  which  could  have 
been  done  before  he  left  the  State. 

2.  That  the  debt  contracted  to  the  plaintiff  was  not  for  the  benefit  of 
the  trust  estate,  and  only  the  life  estate  of  Tate  liable  ;  and  the  trustee 
not  liable. 

Blanding,  for  the  appellant,  in  support  of  these  grounds,  cited  and 
relied  on  Screven  v.  Bostick,  2  M'C.  Ch.  416  ;  Edmonds  v.  Davis, 
1  Hill,  279. 

DeSaussiire,  contra,  contended  that  the  plaintiff  had  brought  liimself 
within  the  rules  which  justify  the  interference  of  Equity,  by  alleging 
and  proving  that  judgment  was  obtained  and  execution  levied  on  the 
trust  property,  and  that  there  was  no  other  property — and  he  could  not 
enforce  a  ca.  sa.,  for  the  defendant  left  the  State.  4  John.  Ch.  Rep. 
671-5. 

*0'Neall,  J.  The  only  question  argued  in  this  case,  and  on  r*33g 
which  it  will  be  necessary  to  express  an  opinion,  is  whether  the 
complainant  has  entitled  himself  to  relief  in  this  Court.  It  is  understood 
from  the  brief  and  the  admissions  made  in  the  argument,  that  Perry  had 
recovered  a  judgment  and  sued  out  an  execution  at  law,  which  was  levied 
on  the  trust  property,  when  an  injunction  was  nxived  for  and  obtained  by 
these  defendants  ;  this  bill  was  tlien  filed,  and  the  injunction  heretofore 
obtained  by  the  defendants  was  dissolved  and  their  bill  dismissed. _  In 
the  meantime  the  cestui  que  frusf,  Tate,  went  from  and  without  the  limits 
of  the  State.  The  defendants  admit  that  the  trust  property  is  the  only 
estate  of  the  cestui  que  trust,  Tate.  . 

Before  a  creditor  seeking  relief  touching  the  personal  assets  of  his 


230  SOUTH    CAROLINA   EQUITY    REPORTS.  [*336 

debtor  can  come  into  this  Court,  he  must  show  not  only  a  judgment  and 
execution,  hut  that  he  has  pursued  his  execution  at  law  to  every  available 
extent.  The  rule  as  stated  in  the  case  of  Brinkerhoff  t'.  Brown,  4  John 
C.  R.  677,  seems  to  me  the  true  one,  "to  procure  relief  in  Equity  by  a 
bill  brought  to  assist  the  execution  of  a  judgment  at  law,  the  creditor 
must  show  that  he  has  proceeded  at  law  to  the  extent  necessary  to  give 
him  a  good  title."  Screven  v.  Bostick,  2  M'C.  C.  R.  416,  Brown  v. 
M'Donald,  decided  at  this  Term.  Following  up  the  rule  laid  down  in 
the  case  of  Brinkerhoff  v.  Brown,  Chancellor  Kent,  in  the  case  of 
M'Derrautt  ?'.  Strong,  4  John  C.  R.  691,  says,  "  I  regard  the  law  to  be 
clearly  settled,  that  before  a  judgment  creditor  can  come  here  for  aid 
against  the  goods  and  chattels  of  his  debtor,  or  against  any  equitable 
interest  which  he  may  have  therein,  he  must  first  take  out  execution  and 
cause  it  to  be  levied  or  returned,  so  as  to  show  thereby  that  his  remedy 
at  law  fails,  and  that  he  has  also  acquired,  by  that  act  of  diligence,  a 
legal  preference  to  the  debtor's  interest."  In  the  case  of  Spader  v.  Davis, 
5  John.  C.  R.  280,  the  plaintiffs  had  recovered  judgments  at  law,  and 
sued  out  executions  which  were  returned  nulla  bona.  Chancellor  Kent 
said  that  "the  plaintiiBTs  at  the  time  of  filing  their  bill  had  acquired,  as 
execution  creditors  at  law,  a  priority  of  right  valid  in  Equity,  to  the  trust 
moneys  I)elonging  to  the  defendant  D.  and  in  the  hands  of  the  defendant 
^„o>T-|  H.,  *and  that  payments  of  the  same  by  II.  to  D.  subsequent  to 
-'  the  filing  of  the  bill  containing  notice  of  that  right  and  of  their 
claim  in  pursuance  of  it,  were  made  in  his  own  wrong." 

From  these  cases  and  authorities  it  is  clear  that  the  plaintiff  is  entitled 
to  the  relief  which  he  seeks.  He  has  recovered  judgment,  sued  out  execu- 
tion and  levied  it  on  property  in  which  his  debtor  has  the  equitable  but 
not  the  legal  estate.  This  entitles  him  to  the  aid  of  this  Court,  for  he 
has  shown  a  legal  title  to  the  relief  sought. 

But  it  is  said  the  party  ought  to  have  gone  one  step  farther,  and  com- 
pelled the  debtor  to  assign  his  interest  by  ca.  sa.  This  in  this  case  could 
not  have  been  resorted  to,  for  the  debtor  had  left  the  State  before  the  injunc- 
tion was  dissolved.  I  do  not  think,  however,  that  it  is  necessary  in  any 
case.  The  party  must  show  an  execution  returned  nulla  bona,  or  levied 
on  the  trust  property,  before  he  can  claim  the  intervention  of  the  Court 
of  Equity  to  relieve  him  touching  the  personal  assets  of  his  debtor.  This 
seems  to  furnish  a  better  and  higher  guard  against  unnecessary  applica- 
tions to  this  Court,  than  an  assignment  under  a  ca.  sa.  would.  For  an 
assignment  might  be  forced  and  obtained,  when  the  debtor's  other  funds 
were  amply  sufficient  to  pay  the  debt.  But  there  can  be  no  necessity  for 
an  assignment  to  entitle  a  creditor  to  proceed  in  equity;  the  fact  that  his 
debtor  is  in  equity  regarded  as  the  owner  of  property,  which  at  law  he  is 
not,  entitles  the  creditor  to  its  aid,  to  make  it  available  in  payment  of  his 
legal  demand.  It  is  not  necessary  that  he  should  have  either  legal  or 
equitable  title  to  the  property;  his  debt  legally  established,  and  pursued 
to  every  available  extent  at  law,  entitles  him  to  have  the  equitable  assets 
of  his  debtor  applied  to  its  payment.  I  am  satisfied  that  the  Chancellor's 
decree  is  correct  in  principle ;  but  as  it  may  have  (unintentionally)  charged 
the  trustee  personally  with  the  debt  of  the  cestui  que  trust,  from  "the 
general  words  used  in  the  decree,  it  will  be  necessary  in  this  respect  to 
modify  it. 


*337]        COLUMBIA,  JUNE,  1833.  231 

It  is  ordered  and  decreed,  that  the  Chancellor's  decree  be  so  far  modi- 
fied, that  it  be  referred  to  the  Commissioner  to  ascertain  and  report  what 
part  of  the  trust  estate  *in  the  bill  mentioned,  belonging  to  the  ^^ 
defendant,  J.  "W.  Tate,  remains  in  the  hands  of  the  defendant,  L '  '^"^^ 
Wm.  Xixon,  or  was  in  his  hands  at  any  time  since  the  filing  of  the  l)ill ; 
and  that  the  said  Wm.  Xixon  apply  so  much  thereof,  either  income  or 
capital,  as  may  be  necessary,  to  the  plaintiff's  debt,  interest  and  costs  at 
law;  but  if  the  capital  should  be  broken  in  upon,  it  can  only  be  for  the 
life  of  James  W.  Tate,  and  if  sold,  it  must  be  sold  for  his  life  only;  the 
purchaser  or  purchasers  to  give  bond  or  bonds  with  good  security,  for  the 
delivery  to  the  Commissioner  of  this  Court  of  such  of  the  slaves  and  their 
increase,  as  may  be  sold  to  pay  the  plaintiff's  debts,  and  vvliich  may  be 
alive  at  the  death  of  James  W.  Tate.  The  costs  to  be  paid  out  of  the 
trust  estate. 

Johnson  and  Harper,  Js.,  concurred. 


Brockman  vs.  Bowman, 


Where  a  bill  is  filed  by  creditors  to  avoid  the  alienation  of  a  deceased 
person  for  fraud,  his  executor  or  administrator  is  a  necessary  party;  and 
if  the  Court  should  set  aside  the  conveyance,  it  will  order  the  property  to 
be  delivered  to  the  executor  or  administrator,  to  be  applied  in  due  course 
of  administration.  The  suing  creditors  are  not  entitled  to  have  their  de- 
mands paid  out  of  the  property,  in  preference  to  others. 


*Smith  and  Cuttino  vs.  H.  Macon,  Administrator  of  William 
Capers,  deceased. 


[*339 


The  penalty  of  a  bond,  conditioned  for  tlie  pnyment  of  money,  is  to  secure  pnvment 
of  the  whole  of  the  condition,  and  any  part  of  it  remaining:  unpaid  is  a  forfeiture 
of  the  penaltj- — therefore  the  obligee  may  recover  the  balance  of  the  condition 
with  interest  thereon,  although  that  sum  when  added  to  the  payments  previously 
made  would  exceed  the  penalty,  (a)  [*339] 

The  bill  in  this  case  was  brought  by  the  plaintifi""s  creditors,_by  bond 
of  William  Capers,  deceased,  against  the  defendant  as  his  administrator. 

Of  the  numerous  questions  presented  to  the  Court,  it  is  only  thought 
necessary  to  notice  one,  viz. :  Whether  the  plaintiffs  were  entitled  to 
recover  beyond  the  penalty  of  the  bond. 

O'Neall,  J.  It  is  objected  by  the  defendants,  that  he  ought  not  to 
be  liable  to  pay  the  complainants  more  than  the  balance  of  the  penalty 
of  the  bond,  after  deducting  from  it  a  payment  made  by  his  intestate,  m 


(a)  See  contra,  Bonsall  v.  Elvers,  1  M'C. 


503. 


232  SOUTH    CAROLINA    EQUITY   REPORTS.  [*339 

his  lifetime ;  on  the  ground  that,  to  apply  the  payment  to  the  extinguish- 
ment of  the  debt  and  interest,  on  the  condition  of  the  bond,  would  be 
virtually  allowing  interest  to  be  recovered  beyond  the  penalty.  He  relied 
upon  the  case  of  M'Wortli  t\  Thomas,  5  Ves.  329,  as  authority  for  this 
position.  That  was  a  bill  filed  by  the  creditors  of  Ilted  Thomas,  to 
obtain  satisfaction  out  of  the  real  estate.  The  executrix  claimed  to  be 
allowed  to  retain  £1,325,  the  arrears  of  an  annuity  of  £100  per  year, 
granted  by  the  deceased  to  her  father,  secured  by  a  bond  in  the  penalty 
of  £500.  The  Lord  Chancellor  refused  to  allow  more  than  the  penalty, 
saying — "This  is  in  the  administration  of  assets.  Is  it  possible  for  the 
Court  to  let  a  creditor  stand  as  a  specialty  creditor,  for  more  than  the 
debt  at  laiv?  There  is  no  doubt  of  the  proposition  in  Collins  v.  Collins, 
but  then  it  must  be  enforced  as  an  agreement  between  the  parties ;  but 
in  the  administration  of  assets,  how  can  I  possibly  deviate  from  the  law  ? 
I  cannot  put  a  larger  sura  in  the  bond  than  the  parties  have."  To  the 
same  purpose  and  extent  are  the  cases  of  Tew  v.  Winterton,  and  Knight 
V.  M'Lean,  3  B.  C.  R.  489,  496.  I  am  satisfied  that  the  view  taken  by 
Lord  Eldon,  in  the  case  of  M'Worth  v.  Thomas,  is  perfectly  correct ;  and 
if  it  is  an  authority  at  all  applicable  to  the  case,  it  is  directly  against  the 
*Qinl  position  assumed  by  the  defendant.*  In  the  words  of  the  Lord 
J  Chancellor,  with  the  change  of  a  single  one,  I  would  say,  "I  can- 
not put  a"  less  "sum  into  the  bond  than  the  parties  have."  To  accom- 
plish the  defendant's  purposes,  this  must  be  done.  The  penalty  is  to 
secure  the  payment  of  the  whole  condition  ;  any  part  of  it  remaining 
unpaid  is  a  forfeiture  of  the  penalty,  which  is  the  debt  at  law.  The  party 
to  be  relieved  against  it  in  equity,  must  pay  the  amount  really  due  on  the 
condition.  What  is  the  amount  due  on  it  ?  The  balance  of  the  debt 
specified  in  the  conditioti,  after  applying  the  payment  at  the  time  it  was 
made  to  the  extinguishment  of  the  interest  to  that  time,  and  the  residue 
to  the  principal,  with  interest  on  the  balance  to  the  present  time.  If  this 
is  less  than  the  penalty  (as  it  is  admitted  to  be),  the  defendant  can  only 
claim  to  be  relieved  from  the  penalty,  by  paying  such  balance, 

Johnson  and  Harper,  Js.,  concurred. 

De  Saussui^e,  for  the  appellants. 
Maijrant,  contra. 


Smith  and  Cutting,  Administrators,  vs.  Sarah  Osborne,  and  others. 

Where  a  mortjiage  of  land  having  been  recorded,  the  land  was  sold  by  the  moi-tgagor 
and  the  purchaser  took  possession,  JLld,  that  the  recording  was  notice  to  the 
purchaser,  and  the  statute  of  limitations  will  not  bar  the  mortgage  lien.  The 
decision  in  Thayer  v.  Cramer,  1  M'C.  Ch.  395,  considered  and  adhered  to.  [*342] 

Heard  before  Chancellor  Johnston,  at  Sumter,  February  Term,  1833. 

This  bill  was  filed  to  foreclose  a  mortgage  of  a  tract  of  land,  executed 
23d  Nov.  1816,  by  Wm.  R.  Theus  to  George  and  Savage  Smith,  the 
plaintiffs'  intestates,  to  secure  the  payment  of  a  bond  of  the  same  date, 


*34:0]  COLUMBIA,  JUNE,  IS 33.  233 

the  last  instalment  of  which  became  due  1st  Januar)'',  1821.  The  mort- 
gage was  recorded  in  the  Register's  Office,  February  10th,  1811.  On 
the  1st  May,  1818,  Theus  sold  and  conveyed  the  mortgaged  premises  to 
Robert  F.  Wethers,  who  on  the  28th  of  the  same  month  sold  *and  r:^oii 
conveyed  to  Charles  L.  Osborne.  Osborne  then  went  into  posses-  I  ^^^ 
sion  and  retained  it  until  his  death  in  1826,  since  which  the  defendants, 
his  distributees,  have  continued  in  possession.  The  bill  was  filed  in 
August,  1830. 

The  defendants  in  their  answer  set  up  the  purchase  from  Wethers, 
which  they  allege  was  bona  fide  and  without  notice  of  the  mortgage,  and 
rely  on  the  statute  of  limitations.  The  main  question  for  the  considera- 
tion of  the  Court  was  whether  the  recording  of  the  mortgage  was  such 
notice  as  to  prevent  the  operation  of  the  statute  ;  in  relation  to  which 
the  Chancellor  in  his  decree  says  : 

"With  respect  to  the  act  of  limitations,  I  am  not  at  liberty  to  depart 
from  the  decisions  of  the  Court  of  Appeals. 

"Purchasers  must  be  held  to  reasonable  vigilance.  When  Osborne 
purchased  from  Wethers,  he  was  bound  to  look  into  his  title.  If  he  had 
looked  into  it,  he  would  have  discovered  that  it  came  from  Theus ;  and 
then  the  recording  of  the  mortgage  would  have  been  notice  to  him. 

"  The  time  must  come  when  the  case  of  Thayer  and  Cramer,  1  M'C. 
Ch.  395,  and  the  case  of  Bynum  and  Nixon,  will  be  held  to  lay  down  pro- 
positions entirely  too  broad  and  unqualified.  They  cannot  be  reconciled 
with  the  case  of  M'Rae  and  Smith,  2  Bay,  339. 

"  It  will  not  do,  in  principle,  to  except  out  of  the  general  rule',  that 
trustees  by  implication  may  rely  on  the  statute — purchasers  from  mort- 
gagors, which  purchasers  are  in  no  respect  truste.es,  except  as  held  so  by 
the  Court  on  account  of  their  fraud  in  purchasing  the  entire  interest 
knowing  that  it  is  burdened  with  a  lien.  If  they  purchase  witliout  notice, 
they  stand  on  the  ground  of  innocent  purchasers,  and  besides  are  entitled, 
from  their  adverse  holding,  to  the  benefit  of  their  possession  from  the 
time  they  take  it.  If  they  purchase  with  notice,  they  are  entitled  to  the 
benefit  of  their  possession  from  the  time  they  give  notice  of  its  adverse 
character  to  the  incumbrancer. 

"But  I  am  bound  by  the  decisions  which  make  no  such  distinctions." 

His  Honor  therefore  decreed  foreclosure,  and  ordered  a  sale  of  the 
premises  to  satisfy  the  balance  reported  by  the  Commissioner  to  be  due 
on  the  bond. 

*From  this  decree  the  defendants  appealed,  on  the  ground  that  r*342 
the  plea  of  the  statute  of  limitations  should  have  been  sustained. 

Haynesworth  and  Blanding,  for  the  appellants. 

G.  and  W.  May  rant,  for  the  appellees. 

Johnson,  J.  Both  the  grounds  of  this  motion  resolve  themselves  into 
the  question  whether  the  complainant  is  bound  by  the  statute  of  limita- 
tions, and  but  for  the  doubts  thrown  out  by  the  Chancellor,  anil  the  very 
learned  argument  of  my  brother  Harper,  in  the  judgment  dc-livered  l_)y 
him  in  Thayer  v.  Davison,  when  presiding  in  the  Court  of  Cliancory  in 
Charleston,  I  should  have  regarded  the  cases  of  Thayer  and  Cramor,  and 
Bynum  and  Nixon,  referred  to  by  the  Chancellor,  as  decisive  of  it.     I 


234  SOUTH   CAROLINA    EQUITY   REPORTS.  [*342 

have  been  induced  by  these  considerations  to  look  again  into  the  subject, 
and  the  result  of  farther  examination  is,  that  it  is  not  a  case  for  the 
technical  application  of  the  statute.  The  statute  does  not  operate  to 
invest  the  party  in  possession  and  claiming  under  it  with  any  right  or 
title,  but  only  as  a  bar  to  the  plaintiff's  right  to  recover.  The  words  are 
that  "if  any  person  or  persons  to  whom  any  right  or  title  to  lands,  tene- 
ments or  hereditaments  in  this  province,  shall  descend  or  come,  do  not 
prosecute  the  same  within  five  (not  ten)  years  after  such  right  or  title 
accrued,  that  he  and  they,  and  all  persons  claiming  under  him  and  them, 
shall  be  for  ever  barred  to  recover  the  same,"  &c.  ;  and  the  same  statute 
points  out  an  action  at  law  as  the  only  effectual  mode  of  making  or  pro- 
secuting the  claim,  so  as  to  prevent  the  bar  of  the  statute. 

As  mortgagees,  the  legal  estate  in  the  lauds  never  has  been,  and  is  not 
now,  in  the  complainants  or  their  intestates — the  Act  of  1791,  1  Faust, 
65,  expressly  declares  "that  no  mortgagee  shall  be  entitled  to  maintain 
any  possessory  action  for  the  real  estate  mortgaged,  even  after  the  time 
for  the  payment  of  the  money  secured  by  the  mortgage  is  elapsed  ;  but 
the  mortgagor  shall  be  deemed  owner  of  the  lands,  and  the  mortgagee  as 
owner  of  the  money  lent  or  due,  and  shall  be  entitled  to  recover  satisfac- 
tion for  the  same,  out  of  the  lands,  in  the  manner  above  set  forth." 
*qiQl  ^sither  the  plaintiffs  nor  their  intestates  could  *at  any  lime  here- 
-J  tofore  have  made  claim  to  those  lands  by  an  action  at  law,  nor  is 
that  the  object  of  these  proceedings — they  are  only  intended  to  charge 
them  with  tlie  payment  of  a  debt  due  by  the  mortgagor.  IIow  then  can 
it  be  .said,  that  the  statute  of  limitations  operates  as  a  bar  ?  No  one 
can  maintain  an  action  for  the  land,  nntil  it  shall  have  been  regularly 
sold,  and  the  equity  of  redemption  foreclosed  ;  and  if,  notwithstanding, 
the  statute  of  limitations  shall  begin  to  operate,  either  from  the  date  of 
the  mortgage  or  from  the  time  of  the  condition  broken,  it  might  well 
happen  that  the  mortgagee  would  be  barred,  notwithstanding  the  facili- 
ties which  the  Courts  afford,  and  all  the  diligence  which  he  might  use  : 
for  we  know  that  suits  in  law  and  equity  are  sometimes  protracted  even 
longer  than  necessary  to  complete  the  bar  of  the  statute. 

I  know  that  the  rule  of  the  statute  is  frequently  adopted  in  Chancery, 
when  it  does  not  operate  as  a  technical  bar  ;  and  here  I  think  the  c^ues- 
tion,  whether  recording  shall  be  considered  as  notice  or  not,  becomes 
important.  The  Act  requiring  mortgages  to  be  recorded,  seems  to  have 
been  intended  principally  to  settle  the  priority  between  them — but  the 
motive  for  recording  them  is  so  great,  that  few  would  neglect  it,  who 
thought  it  a  necessary  security,  and  few  men  who  feel  the  stimulus  which 
interest  usually  imparts,  would  neglect  to  profit  by  the  information  which 
the  Register's  office  would  impart  when  they  were  about  to  purchase  a 
tract  of  land,  unless  they  had  implicit  confidence  in  the  representations  of 
the  seller ;  and  if  they  suffered  themselves  to  be  deceived,  they  ought  to 
take  the  consequences.  Through  this  mean,  a  purchaser  has  it  in  his 
power  to  inform  himself,  and  if  he  neglects  to  do  so  he  has  no  claim  on  a 
Court  of  Ecjuity,  for  the  application  of  the  rule  of  the  statute.  On  the 
other  hand,  if  the  mortgagee  neglect  to  record  his  mortgage,  and  by  this 
means  puts  it  out  of  the  power  of  the  purchaser  to  inform  himself,  he  is 
protected  as  a  purchaser  without  notice.  In  this  view,  therefore,  recording 
the  mortgage  is  notice  to  the  subsequent  purchaser. 


*344]  COLUMBIA,  JUNE,  1833.  235 

*The  case  of  M'Ray  v.  Smith,  2  Bay,  339,  noticed  by  tlie  Clian-  ^^., 
cellor,  is,  I  think,  reconcilable  to  this  view  of  the  suliject.  That  ^  "^ 
was  an  action  to  try  titles  to  land.  The  plaintiff  claimed  under  a  sheriff's 
sale  on  Jl.  fa.,  against  one  Woodroof,  and  the  defendant  under  a  purchase 
from  him.  The  judgment  had  been  obtained  against  Woodroof  I)efore  he 
sold  to  the  defendant,  and  bound  the  land  ;  but  the  defendant  had  had 
possession  under  his  purchase  more  than  five  years  before  the  sale  l)y  the 
sheriff,  and  it  was  held  that  he  was  protected  by  the  statute.  Having 
the  judgment,  the  creditor  might,  at  any  moment,  and  in  defiance  of 
Woodroof,  have  sold  the  land,  if  he  intended  to  resort  to  it  for  the  satis- 
faction of  his  debt^ — and  his  neglecting  to  do  so,  furnished  a  reasonable 
ground  for  the  application  of  the  rule  of  the  statute. 

It  is  therefore  ordered  and  decreed,  that  this  motion  be  dismissed  ;  and 
that  the  decree  of  the  Circuit  Court  be  and  the  same  is  hereby  affirmed. 

CXeall,  J.,  concurred. 

Harper,  J.,  dissented. 


Bi^NjAMiN  Perkins,  and  others,  v.  Mary  R.  Kershaw,  and  others. 

Where  a  trustee  has  been  legally  compelled  to  pay  money,  as  the  surety  of  his 
cestui  que  trust,  in  Equity  the  trust  estate  will  be  charged  with  the  amount  paid; 
and  where  the  trustee  and  the  principal  debtor  being  devisees  of  the  estate,  with 
the  other  parties  interested,  referred  all  their  "claims,  rights  and  interest  in 
said  estate"  to  arbitration,  and  the  arbitrators  awarded  a  portion  of  the  share  of 
the  principal  to  tlie  trustee,  in  payment  of  the  money  advanced  by  him  as  security, 
it  was  held,  that  the  arbitrators  hud  not  exceeded  their  authority,  and  the  award 
was  confirmed.  [*349] 

A  surety  paying  the  debt  of  his  principal,  may  b'  remitted  to  all  the  rights  of  the 
creditor;  and  where  separate  judgments  were  obtained  against  the  principal  and 
surety  for  the  same  debt,  and  the  latter  paid  the  judgment  against  himself,  and 
thereupon  the  sheriff  entered  satisfaction  r  n  both  executions,  the  surety  will  be 
allowed  to  vacate  the  entrj*  of  the  satisfaction  on  the  judgment  against  the  prin- 
cipal, and  to  set  it  up  as  a  lien  on  his  estate.  [*35l] 

This  case  was  heard  by  Chancellor  Johnson,  at  Camden,  July,  1831. 
The  bill  was  filed  to  confirm  and  enforce  an  award  made  between  the  par- 
ties, as  devisees  and  heirs  at  law  of  the  estate  of  Col.  Joseph  Kershaw, 
deceased,  adjusting  their  rights,  and  making  partition  of  that  estate.  Tlie 
only  objection  to  the  confirmation  of  the  award  was  on  the  part  of  Mrs. 
Sarah  Kershaw,  the  widow  of  Joseph  Kershaw,  and  sole  *repre-  r*3^5 
sentative  of  her  estate.  She  insisted  that  the  arbitrators  had 
exceeded  their  powers  in  assigning  a  part  of  the  shares  of  her  husband  to 
Henrietta  Perkins  the  only  surviving  heir  and  representative  of  James 
Kershaw,  in  satisfaction  of  a  debt  due  by  Joseph  to  James  Kershaw;  and 
on  this  ground  objected  to  that  part  of  the  award  ;  and  the  question  for 
the  determination  of  the  Court  was,  whether  on  the  facts  before  them  the 
arbitrators  had,  in  this  particular,  exceeded  their  jiowers  under  the  sub- 
mission. The  Chancellor  held  that  in  this  respect  they  had  exceeded 
their  authority  ;  in  all  other  respects  he  confirmed  the  award.     From  this 


236  SOUTH   CAROLINA    EQUITY    REPORTS.  [*345 

decree  Henrietta  Perkins  appealed  and  moved  this  Court  to  modify  the 
same  so  that  the  award  may  be  entirely  confirmed,  on  the  ground  that  the 
arbitrators  had  not  exceeded  their  powers  under  the  terras  of  the  submis- 
sion.    The  facts  are  stated  in  the  judgment  delivered  by  this  Court. 

W.  F.  De  Saussure,  for  the  appellant,  cited  and  relied  on  the  following 
authorities:  Kyd  on  Awards,  242;  1  Ld.  Ray.  115;  Kyd,  1-17-171;  1 
Black.  Rep.  475 ;  Com.  Rep.  547  ;  3  M'C.  Rep.  487. 

M''Cord,  for  the  defendant,  argued  that  parol  evidence  could  not 
enlarge  or  explain  the  terms  of  the  submission  ;  and  that  it  was  received 
to  ascertain  what  was  parcel  of  the  submission — whether  this  subject 
matter  was  part  "of  the  estate  of  Col.  Joseph  Kershaw,"  so  that  the 
whole  question  is,  what  was  sul)mitted  ? 

This  is  in  the  nature  of  a  bill  for  specific  performance,  Wood  v.  Griffin, 
1  Swanston,  53.  There  is  no  allegation  in  the  bill  as  to  this  claim — 
none,  that  it  was  within  the  terms  of  the  submission  or  that  it  had  any 
connexion  with  the  estate  of  Col.  Kershaw,  which  was  to  be  divided,  and 
can  evidence  be  admitted  beyond  the  pleadings,  and  relief  granted  which 
was  not  prayed  ?  But  it  is  said  the  parties  are  bound  by  judges  of  their 
own  choice.  But  whether  they  have  decided  on  the  matters  submitted  to 
them,  can  only  appear  by  the  submission,  and  if  they  have  gone  beyond 
that  they  have  exceeded  their  jurisdiction.  See  Digest  Lib.  4,  tit.  8,  §  I ; 
3  Poth.  428-460,401.  "One  may  refuse  with  impunity  to  perform  an 
*S4fiT  ""J"^^  sentence,  that  is  to  say,  one  reudered  beyond  the  *terms  of 
-'  the  submission,  as  where  the  arbitrators  decide  on  an  object  other 
than  that  upon  which  they  were  charged  to  judge,"  lb.  The  authority  of 
arbitrators  is  founded  on  the  will  of  those  who  appoint  them,  and  there 
can  be  no  other  evidence  of  that  will  than  the  writing  itself,  Domat,  223, 
B.  tit.  14  ;  Gibson  v.  Watts,  1  M'C.  Ch.  490.  And  tlieir  power  is 
limited  to  what  is  explained  in  the  compromise,  1  Domat,  224,  B.  1,  tit. 
14,  sec.  1;  2  Evans'  Poth.  180.  The  award  must  be  limited  to  the 
terms  of  the  submission,  Kyd,  140  ;  lb.  278.  And  if  a  submission  be  of  all 
suits,  &c.,  between  A.  and  B.  an  award  between  B.  and  his  wife,  and  A. 
is  void,  Kyd,  146.  The  same  doctrine  is  laid  down  in  Waters  u.  Bridges, 
Cro.  Jac.  039  ;  lb.  663  ;  2  Show,  61.  An  award  can  only  be  expounded 
by  itself  without  the  aid  of  an  averment  of  matters  dehors  to  exphiin  the 
meaning,  Bacon,  Ab.  E.  And  if  the  bond  be  given  for  a  specific  object, 
general  words  are  to  be  construed  with  reference  to  that  object,  1  Badger 
and  Dev.  N.  C.  Rep.  52.  And  as  to  the  general  authority  of  arbitrators, 
and  how  far  the  award  is  binding,  see  2  Saund.  410  ;  6  East,  507  ;  16 
John.  166  ;  3  Mod.  177  ;  1  Ld.  Ray,  235  ;  1  Bos.  &  Pul.  N.  R.  113. 

James  Kershaw  could  not  claim  as  a  trustee.  It  does  not  appear  that 
he  was  a  trustee  at  the  time  he  made  this  payment  on  behalf  of  Joseph. 
It  is  denied  that  he  was,  but  if  he  was,  the  debt  he  paid  was  in  no  way 
connected  with  the  trust  estate,  and  the  trust  property  can  only  be  charged, 
and  the  trustee  reimbursed,  for  expenses  incurred  in  the  execution  of'the 
trust,  8  Ves.  8.  Could  Equity  entertain  jurisdiction  of  this  claim  ?  Wiiat 
could  give  it  ?  A  lien  ?  How  is  it  constituted  ?  Bring  a  bill  in  Chan- 
cery for  money  laid  out  and  expended  for  defendant's  use?  see  Irish  T.  R. 
256  ;  2  Bridg.  Dig.  460.  When  the  principal  promised  to  assign  to  the 
surety  who  paid  the  debt,  but  omittted  to  do  so,  Equity  considers  it  as 


*3-16]  COLUMBIA,  JUNE,  1833.  237 

done  and  orders  it  to  be  done ;  but  this  arises  from  the  understanding 
of  the  parties.     There  was  none  such  in  this  case. 

James  Kershaw  conld  have  no  right  to  Joseph's  share  of  his  father's 
estate  on  the  ground  that  he  was  his  surety.  Could  he  be  subrogated  to 
the  rights  of  the  creditor?  Subrogation  is  defined  to  be  "where  the 
surety  pays  he  may  require  of  the  creditor  to  substitute  him  to  all  his 
rights  against  *the  principal  debtor  or  against  the  other  sureties,"  r^^q^-r 
1  Poth.  Oblig.  245.  After  the  surety  has  paid,  if  he  has  procured  L 
a  subrogation  to  the  rights  of  the  creditor,  he  may  exercise  them  as  the 
creditor  himself  might  have  done,  but  if  he  has  neglected  to  acquire  this 
subrogation  he  has  still  an  action  at  law  to  reimburse  him,"  1  Poth,  246. 
James  Kershaw  did  not  pay  the  judgment  of  the  State  v.  Joseph  Kershaw, 
administrator.  Adamson,  it  is  said,  paid  the  execution  against  himself 
and  James  Kershaw,  and  James  paid  him  back  his  half;  so  far  then  James 
could  acquire  no  rights  by  subrogation,  for  this  execution  was  no  lien  on 
Joseph's  estate,  and  as  regards  the  payment  of  the  other  executions  by 
Adamson,  and  the  contribution  afterwards  by  James,  Adamson  neglected 
to  take  an  assignment  and  the  executions  are  marked  "  satisfied" — he  could 
not  now  be  subrogated  ;  and  after  the  long  neglect  of  twenty-five  years,  can 
James  Kershaw's  heirs  at  law  be  entitled  to  subrogation  against  the  heirs 
of  Joseph,  and  claim  a  lien  on  property  which  did  not  become  part  of 
Joseph's  estate  until  twenty-five  years  afterwards  ? 

O'Neall,  J.  It  appears  that  Col.  Joseph  Kershaw  in  1190  conveyed 
the  whole  of  his  estate  to  five  persons,  of  whom  James  Kershaw  was  one, 
in  trust  to  pay  the  debts  of  the  said  Joseph  out  of  the  said  estate ;  and 
the  residue,  if  any,  to  transfer  and  deliver  to  the  said  Joseph,  his  heirs, 
executors  or  administrators.  Col.  Kershaw  died  in  1791,  leaving  a  will 
bearing  date  in  1788,  which  devised  and  bequeathed  his  real  estate  in 
certain  specified  portions  among  his  eight  children,  and  his  personal 
estate  in  equal  shares  among  his  wife  and  children.  James  Kershaw 
and  Joseph  Kershaw,  Jr.,  were  two  of  the  children,  heirs-at-law  and 
devisees  of  Col.  Kershaw.  Joseph  Kershaw,  Jr.,  was  a  tax-collector, 
and  Adamson  and  James  Kershaw  were  his  securities :  he  made  default 
and  was  found  to  be  in  arrear  to  the  State  $2202  99,  for  which  sum,  after 
his  death  (which  took  place  in  1791)  several  judgments  were  recovered 
against  John  Kershaw,  administrator  of  Joseph  Kershaw,  Jr.,  (deceased) 
and  against  Adamson  and  James  Kershaw,  the  securities  of  the  said 
Joseph.  The  whole  amount  was  paid  by  Adamson,  and  James  Kershaw 
contributed  and  paid  to  him  the  one-half  of  the  amount  so  *by  him  r*3^3 
paid  ;  and  the  executions  issued  16th  January,  1805,  on  the  judg-  ■- 
ments  were  returned  satisfied.  These  transactions  took  place  during  the 
continuance  of  the  trust,  and  before  the  death  of  James  Kershaw,  who  died 
in  1815.  It  is  true,  that  in  1794  the  trustees,  according  to  a  power  to 
that  effect  contained  in  the  deed,  appointed  John  Ker.shaw  their  attorney 
and  general  agent  under  the  said  trust  deed,  and  he  had  from  that  time 
the  entire  management  of  the  trust  estate.  In  1828,  all  the  original 
trustees  being  dead,  John  Kershaw  was  substituted  as  a  trustee  under 
the  trust  deed  in  the  Court  of  Equity.  It  is  alleged  by  the  complainants 
that  James  Kershaw  was  the  surviving  trustee  :  the  defendant,  however, 
contends  that  Robert  Henry  was ;  in  this  respect  there  appears  to  be  no 
proof  on  the  subject  whatever ;  it  is  allegation  against  allegation,  and 


238  SOUTH   CAROLINA   EQUITY    REPORTS.  [*348 

no  conclusion  can  be  drawn  from  either — Sarah  Kershaw  is  the  widow 
and  the  only  surviving  heir  or  representative  of  the  estate  of  Joseph  Ker- 
shaw, Jr.,  (deceased)  ;  Henrietta  Perkins,  from  the  award,  seems  to  be 
the  only  surviving  heir  and  representative  of  the  estate  of  James  Kershaw, 
(deceased).  The  arbitrators  to  whom  were  referred  "  all  the  claims, 
interests  and  rights  of  the  heirs  of  the  late  Col.  Joseph  Kershaw,  in  his 
estate,''''  undertook  to  charge  the  estate  of  Joseph  Kershaw,  Jr.,  ascer- 
tained and  separated  by  their  award  from  the  rest  of  the  estate  of  Col. 
Joseph  Kershaw,  with  the  payment  of  the  debt  to  James  Kershaw,  on 
account  of  the  amount  paid  by  him  as  security  for  the  said  Joseph  Ker- 
shaw, Jr  ,  by  awarding  to  Henrietta  Perkins,  as  the  representative  of 
James  Kershaw,  (deceased),  13-81  of  the  32-81  parts  of  the  estate  of 
Col.  Kershaw,  which  constituted  the  share  of  the  said  Joseph  Kershaw, 
Jr.,  and  to  his  widow  Sarah  the  remaining  19-81  parts.  From  the  death 
and  minority  of  some  of  the  parties,  it  became  necessary  to  have  the  award 
confirmed  by  the  Court  of  Equity.  Accordingly  a  bill  was  filed  for  that 
purpose.  Mrs.  Sarah  Kershaw  objected  to  tlie  confirmation  of  so  much 
of  the  award  as  set  up  the  debt  due  by  her  husband's  estate  to  James 
Kershaw,  and  vested  in  Henrietta  Perkins'  18-81  parts  of  the  estate  of 
Col.  Kershaw  out  of  the  share  to  which  Joseph  Kershaw,  Jr  ,  was  enti- 
*^iQl  ^^^*^'  ^'^  satisfaction  of  the  said  debt,  on  *the  ground  that  the  arbi- 
-•  trators  had  exceeded  the  submission.  This  objection  was  sustained 
by  the  Chancellor,  and  that  part  of  the  award  set  aside ;  in  all  other 
respects  it  was  confirmed.  From  this  decree  Henrietta  Perkins  has 
appealed,  on  the  ground  that  the  arbitrators  did  not  exceed  the  submis- 
sion in  awarding  as  they  did. 

The  submission  by  the  heirs  of  Col.  Joseph  Kershaw,  deceased,  is  in 
as  general  terms  as  it  could  well  be  couched — it  is  "  all  our  claims,  inte- 
rests and  rights  in  the  said  estate."  This  covers  everything  which  could 
in  any  way  be  connected  with,  arise  out  of,  or  spring  from  the  estate  of 
Col.  Kershaw.  To  see  whether  the  arbitrators,  in  making  up  their  award, 
have  exceeded  their  powers  under  this  general  submission,  it  is  necessary 
that  we  should  have  evidence  of  the  facts,  which,  as  they  supposed,  autho- 
rised them  to  make  the  award  which  they  did.  This  is  not  evidence  in  expla- 
nation of  the  award  ;  but  it  is  evidence  to  show  whether  it  is  or  is  not  an 
award  binding  on  the  parties.  It  ascertains  whether  the  thing  awarded, 
which  may  or  may  not  be  within  the  submission,  is  within  its  terms  and 
intention.  The  facts  which  have  been  already  stated  were  either  in  proof 
before  the  arbitrators,  or  within  their  knowledge.  Upon  them  they 
passed  and  made  the  award,  which  is  now  the  subject  of  complaint.  The 
single  inquiry  is,  had  they  the  right,  on  the  facts  before  them,  under  the 
submission,  to  make  the  award  ?  Whether  right  or  wrong,  is  not  now  to 
be  investigated.  If  it  was  within  the  submission,  it  is  not  pretended  that 
any  ground  exists  upon  which  the  award  can  be  set  aside. 

Since  the  able  and  ingenious  re-argument  of  the  defendant's  counsel,  I 
have  gone  over  my  former  views  of  the  case,  and  have  compared  his  argu- 
ments with  tlie  facts  of  the  case,  and  the  views  of  the  case  heretofore  ex- 
pressed by  this  Court,  and  I  confess  that  I  have  been  able  to  discover  no 
ground  upon  which  the  Chancellor's  decree  ought  to  be  sustained,  and 
the  award  set  aside. 

James  Kershaw,  who  was  one  of  five  trustees  in  whom  the  legal  estate 


*349]  C0LU3IBIA,  JUNE,  1833.  239 

in  the  whole  of  Col.  Kershaw's  estate  was  vested,  was  the  seonrity  of 
Joseph  Kershaw,  Jr.,  and  in  1805  paid  *for  him  the  sum  of  money  r^rjrp, 
now  claimed  to  be  refunded.  He  had  the  right  to  l)c  refunded  L 
this  sum  before  his  legal  title  could  be  devested — for  it  must  be  recollected, 
that  at  law  the  cestui  que  trust  could  have  had  no  remedy — it  is  alone  in 
Equity  that  he  could  have  claimed  the  execution  of  the  trust ;  and  I  can 
not  be  persuaded  that  it  ever  was  doubted,  that  Equity  in  decreeing  the 
execution  of  the  trust  would  secure  one  of  the  several  trustees,  for  all 
sums  of  money  which  he  had  been  legally  compelled  to  pay  his  cestui  que 
trust  estate.  Taking  this  to  be  true,  what  were  the  claims,  interests  and 
rights  in  Col.  Kershaw's  estate,"  to  which  Joseph  Kershaw,  Jr.,  was 
entitled  ?  I  answer,  that  it  is  clear  that  his  claims,  interests  and  rights, 
were  his  share  charged  with  the  debt  paid  for  him  by  his  trustee,  as  his 
security.  In  other  words,  that  share  could  not  be  taken  out  of  the  pos- 
session of  the  trustee,  until  that  payment  was  made  to  him.  This  is 
compelling  a  party  who  asks  for  equity,  to  do  equity,  and  it  is  on  this 
principle  that  the  whole  doctrine  of  a  lien  of  a  trustee  for  advances  is 
predicated.  But  if  I  understand  the  argument,  it  is  contended  that 
James  Kershaw  never  was  entitled  to  act  as  a  trustee  after  '94,  when 
John  Kershaw  was  appointed  the  attorney  of  the  trustees.  There  can, 
however,  be  nothing  in  this  proposition.  It  would,  to  give  it  elTect,  be 
making  the  attorney  superior  to  the  principal — the  created  greater  than 
the  creator,  and  power  delegated,  irrevocable.  John  Kershaw's  acts 
were,  however,  the  acts  of  each  and  all  the  trustees.  They  and  each  of 
them  were  bound  by  whatever  he  did — still,  however,  the  estate  was  in 
them  ;  and  it  was  against  them,  and  not  their  attorney,  that  the  cestui  que 
trust  must  have  proceeded  to  have  the  trust  decreed.  Neither  can  the 
substitution  of  John  Kershaw,  in  '28,  as  trustee,  by  the  order  of  the  Court 
of  Equity,  change  the  rights  of  the  parties — it  is  true,  the  legal  estate  is 
then  vested  in  liim,  but  he  holds  it  subject  to  all  the  equities  existing 
between  the  original  trustees  or  any  of  them,  and  the  cestui  que  trusts  or 
any  of  them.  The  question,  whether  Joseph  Kershaw's  share  of  his 
father's  est^ate  ought  to  be  charged  with  the  payment  to  James  Kershaw 
of  the  money  paid  by  him,  as  his  security,  according  to  the  views  which  I 
have  *suggested,  was  necessarily  to  be  decided  upon  by  the  arbi-  r:)c35]^ 
trators  under  the  submission. 

There  is,  however,  another  consideration,  which  to  my  mind,  is  conclu- 
sive to  show  the  authority  of  the  arbitrators  to  award  as  they  did.  The 
security,  who  pays  the  debt  of  his  principal,  has  the  right  to  be  remitted 
to  all  the  rights  and  securities  of  the  creditor.  He  is  in  Equity  substi- 
tuted for  the  creditor.  The  debt  to  the  State  was  a  judgment  again.st 
the  administrator  of  Joseph  Kershaw,  deceased.  In  Equity  the  securi- 
ties, upon  showing  that  they,  and  not  the  administrator,  paid  the  money, 
would  be  allowed  to  vacate  the  entry  of  satisfaction  on  the  execution  by 
the  sheriff  as  made  by  mistake,  and  to  set  up  the  judgment  as  a  subsisting 
lien  on  the  real  estate  of  Josejih  Kershaw,  Jr.,  deceased.  The  proof  is 
clear,  that  Adamson  first  paid  the  entire  debt,  and  that  subse(iuently 
James  Kershaw  paid  to  him  one  moiety.  The  executions  against  them 
were  properly  returned  satisfied,  l)ut  that 'against  the  administrator  of 
Joseph  Kershaw,  Jr.,  deceased,  was  improperly  so  returned  ;  and  James 
Kershaw,  for  the  amount  paid  by  him  or  his  representative,  hud  the  right 


240  SOUTH    CAROLINA    EQUITY    REPORTS.  [*351 

to  claim  that  the  entry  sliould  be  set  aside  and  the  judgment  set  up  for 
the  amount  due  to  him,  as  a  lien  on  Joseph  Kershaw,  Jr. 's,  estate.  This 
was  in  effect  done  by  the  arbitrators,  when  they  ascertained  that  32-81 
parts  of  Col.  Kershaw's  real  estate  belonged  to  Joseph  Kershaw,  Jr., 
and  of  course  descended  to  his  heirs,  and  when  they  set  up  the  moiety  of 
the  judgment  paid  by  James  Kershaw,  as  a  subsisting  lien,  and  having 
ascertained  the  amount  due,  appropriated  13-81  parts  to  the  payment. 
This  award  was,  I  think,  within  the  submission,  and  I  am  not  disposed  to 
scan,  with  great  nicety,  the  decision  of  men  who  were  the  friends  of  the 
parties,  and  intimately  acquainted  with  the  affairs  which  they  were  called 
upon  to  adjust,  and  which,  from  the  death  of  the  parties  and  lapse  of  time, 
could  be  only  justly  arranged  by  the  domestic  forum  of  arbitration,  which 
acts  according  to  good  conscience  and  not  by  technical  rule. 
^oKni  *It  ^s  therefore  Ordered  and  decreed,  that  so  much  of  the  Chan- 
-1  cellor's  decree  as  sets  aside  that  part  of  the  award  vesting  in 
Henrietta  Perkins'  13-81  parts  of  the  estate  of  Col.  Kershaw  out  of  the 
share  of  Joseph  Kershaw,  Jr.,  be  reversed,  and  that  the  said  award  be 
confirmed  entirely. 

Johnson  and  Harper,  Js.,  concurred. 


CASES    IN   CHANCERY 

ARGUED  AND  DETERMINED  IN  THE 

COURT  OF  APPEALS  OF   SOUTH  CAROIIXA. 

Columbia — ^cambtr,  1833,  mxb  lamiarg,  1834. 


JUDGES  PRESENT. 


Hon.  DAYID  JOHNSON,  Presiding  Judge. 
Hon.  J.  B.  O'NEALL.     I      Hon.  WILLIAM  HARPER. 


Ex  parte,  R.  B.  Wiggins. 

Where  a  trustee  purchase  at  his  own  sale  it  is  at  the  option  of  the  parties  interested 
without  any  inquiry  into  the  circumstances,  to  have  a  resale,  or  to  hold  the 
trustee  to  his  purchase.  If  they  elect  to  have  a  re-sale,  the  course  is  to  put  the 
property  up  at  the  price  bid  by  the  trustee — if  more  is  bid  at  the  second  sale  the 
property  is  resold — if  not,  the  trustee  is  held  to  his  purchase:  And  such  a  sale  is 
not  less  the  sale  of  the  trustee,  because  made  under  the  order  of  the  Court  and 
superintendence  of  the  Commissioner,  when  procured  at  his  instance.  ['*'354] 

A  bill  having  been  filed  by  the  assignees  of  Baker  Wiggins,  against 
his  heirs  and  creditors  to  marshal  his  assets,  the  Court  ordered  a  sale  of 
his  real  estate  by  the  Commissioner,  under  the  superintendence  of  the 
assignees,  who  were  directed  to  join  in  the  conveyance  to  the  purchaser. 
At  this  sale  R.  B.  Wiggins,  one  of  tlie  assignees,  became  the  purchaser 
of  the  whole  estate,  and  afterwards  filed  this  ^petition  to  confirm  r^oci 
the  sale.  The  Commissioner,  to  whom  it  had  been  referred,  L 
reported  that  the  sale  was  fairly  conducted — that  the  purchase  was  bona 
fide,  and  for  an  adequate  consideration  ;  and  that  the  petitioner  was-  a 
creditor  of  Baker  Wiggins. 

Chancellor  Johnston,  who  heard  the  petition,  at  Marion,  February 
Term,  1833,  held,  that  the  purchase  "could  neither  be  set  aside  nor  con- 
firmed, without  knowledge  of  the  will  of  other  persons  interested,  who 
are  not  parties  to  this  proceeding."  That  "according  to  decided  cases, 
a  trustee  to  sell  cannot  purchase,  whether  he  is  partly  interested  or  not. 
If  he  purchases,  the  sale  will  be  set  aside,  or  he  will  be  held  to  the  pur- 
chase, as  of  course,  at  the  option  of  the  parties  interested ;  and  as  the 
rule  forbidding  such  purchases,  is  one  of  policy  to  prevent  fraud,  when 
there  is  no  possibility  of  proving  it,  the  inquiry  is  never  made,  whether 
Vol.  I.— 16 


242  SOUTH    CAROLINA    EQUITY    REPORTS.  [*354 

the  sale  is  or  is  not  advantageous."  He  therefore  dismissed  the  petition, 
and  the  petitioner  moved  this  Court  to  reverse  his  decision,  and  to  confirm 
the  sale. 

JDargan,  for  the  appellant. 

Harper,  J.  I  concur  with  the  Chancellor,  that  "a  trustee  to  sell 
cannot  purchase,  whetlier  he  is  partly  interested  or  not.  If  he  purchases, 
the  sale  will  be  set  aside  or  he  will  be  held  to  the  purchase,  as  of  course, 
at  the  option  of  the  parties  interested."  I  also  concur  that  the  sale 
"  cannot  be  set  aside  or  confirmed,  without  knowledge  of  the  will  of  other 
persons  interested,  who  are  not  made  parties  to  this  proceeding."  It 
appears  however  to  be  matter  of  much  interest  to  all  the  parties  concerned 
that  this  estate  should  be  finally  closed,  and  perhaps  it  may  be  in  our 
power  without  irregularity,  to  facilitate  the  doing  of  this,  by  directing  the 
persons  interested  to  be  made  parties  to  the  proceeding  and  ascertaining 
their  will. 

I  believe  the  principle  laid  down  by  the  Chancellor  to  be  fully  settled, 
that  where  a  trustee  purchases  at  his  own  sale,  it  is  absolutely  at  the 
option  of  the  parties  interested,  without  any  inquiry  into  circumstances, 
to  have  a  re-sale,  or  to  hold  the  trustee  to  his  purchase.  If  they  elect  to 
^^^-,  have  a  *re-sale,  the  course  is,  that  the  property  should  be  put  up 
-I  at  the  price  bid  by  the  trustee.  If  more  is  bid  at  the  second  sale, 
the  property  is  re-sold  ;  if  not,  the  trustee  is  held  to  his  purchase.  I  am 
satisfied,  too,  from  looking  into  the  cases,  that  it  is  at  the  option  of  any 
portion  of  the  creditors  or  persons  interested,  or  any  individual  of  them, 
to  have  a  re-sale.  The  cases,  ex  parte  Hughes,  6  Ves.  824 ;  ex  parte 
Lacey,  6  Ves.  625 ;  ex  p)arte  Bennet,  10  Ves.  381,  are  sufiicient  to  estab- 
lish the  rule,  that  without  any  inquiry  into  circumstances,  the  sale  shall 
be  avoided  at  the  election  of  the  parties.  In  all  of  these  cases  too,  the 
course  was  to  put  up  the  property  at  the  price  bid  by  the  trustee,  (with 
the  value  of  improvements,  where  improvements  had  been  made)  and  if 
no  more  could  be  got,  to  affirm  the  trustee's  purchase.  In  Morse  v. 
Royal,  12  Ves  372,  the  Chancellor  says  in  relation  to  such  a  purchase, 
that  without  any  consideration  of  fraud,  or  looking  beyond  the  relation 
of  the  parties,  that  contract  is  void."  In  Campbell  v.  Walker,  5  Ves. 
678,  where  application  was  made  on  behalf  of  infants  to  set  aside  such  a 
sale,  a  reference  to  the  master  was  ordered  to  ascertain  whether  it  would 
be  for  their  benefit.  Being  infants,  it  might  devolve  on  the  Court  to 
elect  for  them  Otherwise,  the  late  cases  establish  that  the  right  of 
choice  is  absolute  in  the  parties  without  inquiry. 

In  Whelpdale  v.    Cookson,  ,  Lord  Hardvvicke  left  it  to  the 

majority  of  the  creditors  to  elect  whether  the  property  should  be  re-sold. 
But  in  ex  parte  Lacey,  Lord  Eldon  expresses  his  dissent  from  the  opinion 
of  Lord  Hardwicke,  and  doubts  whether  a  majority  of  creditors  can  bind 
the  minority.  And  in  a  note  to  that  case,  tlie  Reporter  refers  to  the 
cases,  ex  X)arte  Tanner,  ex  parte  Attwood,  and  Owen  v.  Foulkes,  decided 
about  the  same  time,  in  which  the  Chancellor  repeated  the  principles  and 
declared  the  general  rule,  that  no  trustee  shall  buy  unless  he  strii)S  himself 
of  that  character,  or  by  universal  consent.  In  ex  parte  James,  8  Ves. 
337,  the  trustee  had  satisfied  all  the  principal  creditors,  and  obtained 


*355] 


COLUMBIA,  DECEMBER,  1(S33.  243 


their  acquiescence  or  purchased  their  claims,  3-et  tlie  purcliase  was  set 
aside  at  the  instance  of  a  simple  creditor,  the  petitioner.  In  Davoiie  v. 
Fanning,  2  Johns.  Ch.  Ca.  252,  *Chancellor  Kent  reviews  all  the  |-^.,, 
cases,  and  comes  to  the  conclusions  I  have  before  expressed —  L  "  * 
that  it  is  absolutely  necessary  at  the  election  of  the  creditors  or  parties 
interested  to  set  aside  such  a  sale — or  of  any  individual  creditor  or 
party — and  that  the  course  is  to  put  up  the  property  at  the  ])rice  bid  Ijy 
the  trustee,  and  hold  him  to  his  purchase  if  more  cannot  be  got. 

It  was  argued  that  this  was  not  a  sale  by  the  trustees,  as  it  was  made 
by  the  order  of  the  Court  and  superintended  by  the  Commissioner.  The 
bill  was  filed  by  the  assignee  to  marshal  the  assets  and  settle  the  estate. 
The  sale  I  suppose  was  made  at  his  instance,  and  was  not  less  his  sale, 
because  made  with  the  concurrence  and  under  the  superintendence  of  the 
Commissioner.  It  is  not  merely  against  unfairness  in  the  actual  con- 
ducting of  the  sale,  that  the  principle  is  intended  to  guard.  The  t  ases 
suppose,  that  in  consequence  of  his  connexion  with  the  estate  as  trusiee, 
he  may  have  acquired  important  information  as  to  its  value — such  as  the 
existence  of  mines — which  the  Court  can  never  be  sure  he  has  fully  com- 
municated, and  no  one  undertaking  to  act  for  the' benefit  of  others,  s'lall 
be  permitted  to  act  for  his  own  advantage  in  the  same  matter.  Ex  parte 
Lacey,  6  Ves.  625;  ex  x^cbrte  Bennet,  10  Ves    381. 

It  is  ordered  that  the  petition  be  referred  back  to  the  Commissioner  to 
inquire  and  report  to  the  next  sitting  of  the  Circuit  Court,  whether  any 
of  the  creditors  or  parties  interested  desire  a  re-sale  of  the  land  in  ques- 
tion, and  that  the  said  creditors  and  parties  be  notified  to  attend  beiore 
the  Commissioner  at  a  time  appointed  by  him  for  that  purpose  ;  that  if 
any  of  the  said  creditors  or  parties  shall  require  such  re-sale,  the  sa'd 
land  shall  be  again  exposed  to  sale,  at  such  time  and  on  such  terms  as 
the  Circuit  Court  shall  direct,  and  put  up  at  the  price  bid  for  the  same 
by  the  petitioner  ;  but  if  none  of  the  said  creditors  or  parties  shall  require 
a  re-sale,  or  if  upon  being  again  offered  for  sale,  no  greater  price  shull  be 
offered  than  that  heretofore  bid  by  the  petitioner  for  the  said  land,  then 
that  the  petitioner's  purchase  be  confirmed. 

Johnson  and  O'Neall,  Js.,  concurred. 


*JoHN  Bankhead,  Administrator  de  bonis  non  cum  test.  ann. 

of  GiDEOX  Glenn,  v    Thomas  A.  Carlisle,  Administrator  [*3r7 
de  bonis  non  cum  test.  ann.  of  James  Glenn. 

Testator  by  his  will,  devised  bis  estate  to  his  wife,  during  widowhood,  and  rlu-n 
adds,  "which  said  property  I  wish  and  devit^e,  at  the  marriage  or  death  m  my 
wife,  to  be  equally  divided  amongst  my  cljildren  as  above  named;"  0.,  one  vi  ttio 
testator's  sons  there  named,  survived  him,  but  died  before  the  widow:— /MA  Ibat 
this  was  a  vested  remainder  iu  G,  and  his  represent  itives  are  entitled  to  Ins 
share. (tt)  [*o5S] 

JonNSTON,  Chancellor.     James  Glenn,  of  Chester,  in  this  State,  by  ttic 
(a)  See  Cole  v.  Creyon,  ante,  322. — R. 


244  SOUTH    CAKOLIXA    EQUITY    REPORTS.  [*357 

first  ten  clauses  of  his  will,  gave  specific  legacies  to  his  ten  children,  by 
name,  of  whom  Gideon  Glenn  was  one.  The  eleventh  clause  relates  to 
the  education  of  two  of  his  sons.  The  twelfth  clause  is  as  follows  :  "J 
lend  to  Elizabeth  Glenn,  my  beloved  wife,  during  icidoivhood,  (or  life,  in 
case  she  does  not  marry)  all  my  estate,  real  and  personal,  not  stipulated 
as  aforesaid,  consisting  of  a  tract  of  one  hundred  and  fifty  acres  of  land  in 
Union  District,  and  State  aforesaid,  on  Broad  River ;  one  other  tract  of 
one  hundred  and  fifty  acres  of  land,  in  Chester  District  and  State  aforesaid, 
on  Broad  River,  being  the  place  whereon  I  now  live  ;  also  eleven  negroes, 
namely,  Aaron,  Esther,  Mary,  Mourning,  Age,  Samuel,  Cato,  Pompey, 
Jesse,  Jacob,  and  Milley,  with  their  increase,  if  any  they  should  have ; 
also  all  my  stock  of  horses,  cattle,  sheep,  and  hogs  ;  which  said  property  I 
v:ish  and  devise,  at  the  marriage  or  death  of  my  beloved  wife,  to  be  equally 
divided  amongst  my  children,  as  above  'named,  with  one  exception,  rela- 
tive to  [the]  dividend  or  share,  falling  to  my  beloved  daughter,  Hannah 
Carlisle,  which  is,  I  lend  to  her  such  dividend  or  share,  during  her  life, 
and  at  her  death,  to  go  to  the  heirs  of  her  body." 

The  testator's  son  Gideon  survived  him,  but  was  survived  in  his  turn, 
by  the  testator's  widow,  who  continued  discovert  until  her  death.  On 
her  death,  the  original  executors  of  the  testator  being  dead,  the  defendant 
took  out  letters' of  administration  de  bonis  non,  with  the  will  annexed; 
and  possessed  himself  of  so  much  of  the  personalty  in  which  she  had  the 
life  interest  under  the  will,  as  remained,  or  he  could  find  ;  and  has  de- 
clined to  account  to  the  plaintiff,  for  one-tenth  of  it,  which  he  claims,  as 
the  administrator  de  bonis  non  with  the  will  of  Gideon  Glenn  annexed. 
The  bill  is  filed  among  other  things,  to  compel  such  account. 
*9-o-i  The  plaintiff  also  claims  an  account  of  a  share  of  Newton* 
"^  -I  Glenn,  another  son  of  James  Glenn, — stating  that  by  Newton's 
death  he  became  entitled  to  it ;  but  in  what  way,  the  bill  does  not  inform 
us.  The  only  question  argued  before  me,  is,  therefore,  the  only  one  I  am 
to  decide,  and  relates  to  the  interest  which  Gideon  took  in  the  personal 
property  under  the  twelfth  clause  of  his  father's  will.  The  plaintiff  con- 
tending that  he  took  a  vested  remainder,  which  was  not  lost  by  his  dying 
before  his  mother  ;  the  defendant,  that  his  was  a  mere  contingent  interest, 
which  lapsed  by  his  death,  before  the  happening  of  the  event  on  which 
its  vesting  depended. 

The  will,  in  point  of  form,  does  not  limit  over  the  property  to  the  tes- 
tator's children,  on  their  mother's  death  or  marriage,  but  merely  directs, 
that  on  the  happening  of  that  event,  it  be  equally  divided  among  them. 
Yet  I  think  the  direction  to  divide  it  among  them,  substantially  includes 
a  bequest  of  it  to  them.  Gideon,  by  surviving  the  testator,  was  in  a  con- 
dition to  take  under  the  will,  whatever  passed  by  the  will.  The  will  gave 
him  a  portion  of  the  property,  with  a  direction  that  it  be  allotted  to  him 
on  his  mother's  death.  He  could  have  taken  it  the  day  of  his  father's 
death,  and  was  withheld  only  by  the  preferable  right  of  enjoyment,  which 
the  will  conferred  on  his  mother.  Nothing  but  that  prevented  him. 
Here  then  was  a  present  capacity  to  take  whenever  the  possession  should 
become  vacant.  This  is  the  test  of  a  vested  interest — and  an  interest 
vested,  is  not  lost  by  the  dying  of  the  person  in  whom  it  exists,  before 
the  period  of  its  being  actually  enjoyed, — that  only  transmits  it,  in  the 
case  of  realty,  to  his  distributees  or  legatees,  and  in  the  case  of  personalty, 


*358]  COLUMBIA,   DECEMBER,    1833.  245 

to  his  representative.  The  cases  relied  on  by  the  defendant's  solicitors, 
were  founded  on  wills  wherein  the  testators  had  limited  remainders  to 
such  of  their  children  as  should  be  alive  at  the  termination  of  the  par- 
ticular estates.  Some  of  their  children  had  died  before  that  event,  but 
left  children,  who  claimed  to  stand  in  the  place  of  their  parents.  What 
is  the  effect  of  these  cases?  The  grand-children  claimed  as  devisees 
themselves,  and  not  as  the  distributees  of  the  devisees.  They  claimed 
instf-ad  of,  and  not  through,  their  ^parents.  Their  position  was,  r^q-q 
that  a  devise  to  children  living  at  the  happening  of  the  contin-  L  ^"^ 
gency,  was  a  good  devise  to  grand-children,  then  living.  That  "children" 
should  be  construed  to  extend  to  and  mean  grand-children  also,  and  that 
of  course,  grand-children  "then  living,"  would  come  within  the  descrip- 
tion of  the  testator,  and  were  in  fact,  devisees.  Why  were  the  grand- 
children driven  to  take  this  position  ?  If  they  could  have  claimed  suc- 
cessfully under  or  by  transmission  of  rights  through  the  parents,  it  would 
have  been  as  beneficial  to  them.  But  if  they  had  claimed  in  that  way,  it 
would  have  resulted,  that  no  rights  ever  vested  in  their  parents,  in  order 
to  be  transmitted  to  themselves.  Why  not  ?  Because  their  parents  were 
never,  in  fact,  devisees.  The  devisees  were  such  children,  and  such  only, 
as  should  be  living  at  the  happening  of  the  contingency.  Such  was  the 
description  given  in  the  will.  Who  should  answer  to  -that  description, 
could  not  be  known  until  the  contingency  happened.  The  devisees  were 
made,  as  it  were,  ambulatory  until  that  time ;  and  the  state  of  affairs 
which  presented  itself  then,  for  the  first  time,  disclosed  who  the  devisees 
really  were.  The  children  who  had  died  in  the  meantime  were  not 
devisees,  and  no  right  was  transmitted  through  them. 

But  we  gather  from  this  an  inference  even  favorable  to  the  plaintiff  in 
the  case  at  bar.  The  parents  of  the  grandchildren  were  excluded,  not  as 
children  of  the  testator,  because  in  that  respect,  they  came  witliin  his 
description — but  because  they  fell  short  of  his  description,  in  another 
particular  :  they  were  not  living  at  the  event  pointed  out  by  him.  If 
they  had  been  "  then  living,"  their  rights  would  have  been  good — and 
they  were  excluded  only  I)y  the  force  of  the  words  "  then  living." 

In  the  case  at  bar,  Gideon  came  within  the  description  of  a  "child 
above  named,"  and  there  is  no  description  given  to  which  he  does  not 
answer,  so  as  to  exclude  him.  The  plaintiff  is  entitled  to  the  account  he 
claims.  This  is  not,  however,  a  case  for  costs.  The  parties  have  come 
here  bona  fide  to  settle  what  to  them  was  a  doubtful  question. 

*It  is  decreed  that  the  defendant  account  to  the  plaintiff"  before  r*3gQ 
the  Commissioner,  touching  the  personal  property  received  by 
him,  or  for  which  he  is  chargeable.  The  parties  to  pay  their  own  costs 
to  be  allowed  them  out  of  the  estates  which  they  respectively  represeiit, 
if  suflScient. — When  the  Commissioner's  report  comes  in,  the  decree  will 
be  pronounced  for  the  amount.  The  remaining  equities  under  the  bill 
are  reserved,  until  the  expiration  of  the  next  Term  ;  unless  the  plaintiff 
shall  in  the  meantime  discontinue  as  to  them.  The  further  costs  to 
arise  out  of  their  prosecution,  are  not  included  in  the  foregoing  decree  as 
to  costs. 

From  this  decree  the  defendant  appealed  on  the  ground  :  That  from 
the  words  of  the  clause  in  the  will  of  James  Glenn,  the  property  did  not 


246  SOUTH    CAROLINA   EQUITY    REPORTS.  [*360 

vest  in  his  children  until  the  death  of  his  widow,  and  Gideon  Glenn  having 
died  before  that  time,  his  representatives  cannot  take  under  the  will. 

Thomson  and  Dawkins,  for  the  appellant,  referred  to  2  Salk.    415  ; 
Farr  v.  Blair,  and  Gordon  v.  Sims  ;  MSS.  cases  ;  Columbia. 

Williams,  contra,  cited  3  Eq.  Rep.  273;  2  Rob.    on   Wills,    112; 
Fearne,  149,  150  ;  2  Con.  Rep.  91. 

Fer  Curiam.     We  concur  with  the   Chancellor,  for  the  very  satis- 
factory reasons  stated  in  his  decree. 


W.  H.  Fraser  v.  Thos.  Boone  and  Wife. 

Where  there  are  twoinconsistentbequests  of  the  same  property  in  the  same  will,  the 
second  revokes  the  first:  and  where  the  testator,  by  one  clause  of  his  will 
bequeathed  a  slave  to  his  son,  remainder  to  his  issue,  and  fiiiling  in  issue, 
remainder  over;  and  by  a  subsequent  clause  bequeathed  the  same  slave  to  his 
daughter,  with  like  limitations:— i/eW,  that  the  clauses  were  inconsistent,  and  the 
last  revoking  the- first,  that  the  daughter  was  entitled  to  the  legacy.  [*307] 

Bill  for  account  and  partition,  at  Sumter,  February,  1831. 

The  only  question  considered  by  this  Court,  was  as  to  the  effect  of  two 
inconsistent  clauses  of  a  will  bequeathing  the  property  to  different 
legatees. 

John  B.  Fraser,  the  father  of  Mrs.  Boone,  in  his  will  dated  18th  May, 
*^R11  ^^^9'  bequeathed  by  the  fifth  clause  of  the  same,  a  *negro  man 
-'  George  with  other  slaves,  to  William  Hickman  Fraser,  the  plain- 
tiff "  for  his  natural  life,  and  at  his  death  to  the  lawful  issue  of  his  body, 
and  if  he  should  die  without  lawful  issue  living  at  the  time  of  his  death, 
then  in  that  case  remainder  to  the  surviving  brothers  or  sisters,  or  brother 
or  sister  of  the  said  William  Hickman."  And  with  a  further  provision, 
that  in  case  any  of  the  brothers  or  sisters  should  die  in  his  life-lime, 
leaving  issue  of  their  body,  living  at  the  death  of  the  said  William  Hick- 
man— such  issue  to  take  the  share  which  the  parent  would  have  taken 
had  they  survived  the  said  William  Hickman. 

By  the  sixth  clause  of  the  same  will,  the  testator  bequeathed  to  his 
daughter  Jane  Baxter  Fraser,  the  same  negro  George  with  other  slave, 
&c., — to  her  for  her  natural  life,  and  in  case  of  her  death,  with  the  same, 
limitations  over  in  favor  of  her  issue,  brother  and  sisters,  and  their  issue 
as  are  contained  in  the  fifth  clause — the  very  same  words  are  used,  as 
repeated  over  again  in  this  clause. 

Robert  Fraser,  one  of  the  executors,  qualified  on  the  will,  the  5th  of 
June,  1820,  and  Jane  Baxter  Fraser,  wife  of  the  defendant  Boone,  quali- 
fied sometime  after,  on  31st  Dec,  1821.  On  the  1st  Dec,  1828,  the 
plaintitf  filed  his  bill,  claiming,  that  although  the  testator  had  bequeathed 
by  distinct  and  separate  clauses  the  said  negro  George,  first  to  himself 
and  afterwards  to  his  sister,  they  took  a  joint  bequest  in  the  said  negro. — 
That  she  had  intermarried  with  the  defendant,  Thos.  Boone,  who  had 
refused  to  recognise  his  claim,  he  therefore  prayed  that  the  slave  might 


*361]  COLUMBIA,    DECEMBER,    1833.  247 

be  sold  and  the  avails  divided.  The  defendant,  Thos.  Boone,  in  answer, 
admitted  the  marriage,  and  that  he  had  the  negro  George  in  his  pos- 
session thus  bequeathed,  but  contests  the  coustructiou  put  by  the  plaintill" 
on  the  will. 

Johnston,  Chancellor.  The  defendants  contend  that  the  latter  clause 
supercedes  the  former,  and  that  they  being  entitled  under  it  have  a  right 
to  the  slave  George,  giving  to  them  in  it,  in  exclusion  of  the  plaintiff, 
who  claims  under  the  superceded  clause. 

The  doctrine  is  plainly  laid  down  in  the  older  authorities,  that  a  sub- 
sequent clause  in  a  will  shall  prevail  over  a  prior  clause.  But  it  was 
said  by  the  plaintiff's  counsel,  Mr.  *Blanding,  that  although  the  r*3g2 
older  authorities  are  to  this  effect,  the  Courts  have  subsequently  ^ 
come  to  a  conclusion,  that  in  such  cases  the  clauses  shall  stand  together. 
Upon  looking  at  the  authorities  quoted,  and  others,  I  find  that  they  use 
the  language  attributed  to  them. 

They  argue  that  although  the  last  of  two  wills  supercedes  the  first,  yet 
that  there  is  a  want  of  the  analogy  supposed  by  the  early  authorities 
between  the  cases  of  two  wills,  and  the  cases  of  two  clauses  of  the  same 
will.  Swin.  part  1,  ch.  21.  That  in  the  case  of  two  wills,  the  testator 
assents  to  them  separately,  and  that  to  which  he  last  assents  is  his  last 
will :  but  that  in  the  case  of  two  separate  clauses  of  the  same  will,  he 
does  not  assent  to  either  before  the  other,  but  to  both  together  as  an 
unity,  after  finishing  the  whole  will.  2  Atk.  314.  That  he  does  not 
assent  to  the  clauses  of  the  will,  as  clauses,  but  to  the  whole  will  con- 
sisting of  clauses.  3  Atk.  493.  That  it  is  true,  that  in  revolving  in  his 
mind  the  subjects  embraced  in  the  will,  he  can  only  give  them  a  succes- 
sive consideration  ;  but  that  the  assent  which  he  gives,  after  all  the 
details  are  arranged,  is  the  only  evidence  we  can  have  that  he  intended 
the  paper  to  stand  as  his  will.  That  in  assenting  he  has  contemplated 
the  provisions  as  a  whole,  not  only  separately  but  in  their  relation  to 
each  other,  and  pronounced  his  work  good  That  the  power  to  do  this, 
is  what  is  called  a  sound  and  disposing  mind  and  memory. 

The  case  was  argued  before  me  on  the  same  point,  and  in  the  same 
way.  Upon  looking  at  the  authorities  I  confess  I  was  struck  with  the 
plausibility,  and  at  first  came  to  the  conclusion  that  the  old  doctrine  had 
been  over-ruled.  But  further  reflection  has  satisfied  me  that  properly 
understood,  and  as  to  cases  where  it  has  a  real  application,  it  has  not 
been.  And  I  am  further  satisfied  that  in  the  cases  and  authorities  where 
the  arguments  were  used  which  I  have  recited,  the  question  which,  from 
the  language  held,  appeared  to  have  been  settled,  never  occurred  ;  and 
that  in  them,  as  in  this,  an  immaterial  question  was  argued. 

The  ancient  doctrine  properly  understood,  is  not  that  all  subsequent 
clauses  shall  prevail  over  the  prior  clauses  embracing  the  same  sultjects 
of  disposition.  But  it  is,  that  where  a  subsequent  clause  either  directly 
in  terras  repeals  a  former,  *or  contains  provisions  so  inconsistent  r*3g3 
with  it,  that  it  cannot  stand  with  it  and  by  implication  repeals  it, 
it  shall  prevail  over  it. 

Now  the  reason  given  by  the  authorities  referred  to,  why  the  clauses 
should  prevail  together,  is  that  the  testator  has  assented  to  both  together, 
and  to  one  as  well  as  to  the  other ;  and  that  reason  is  a  good  one  where 


248  SOUTH    CAROLINA    EQUITY    REPORTS.  [*363 

it  can  apply,  as  for  instance,  where  the  clauses  can  be  made  to  stand 
together.  JBut  will  any  body  contend,  that  when  a  testator  has  said  in  a 
subsequent  clause,  "  whereas  I  bequeathed  so  and  so  in  a  prior  clause, 
now  I  do  hereby  revoke  the  legacies  and  give  them  to  other  persons" — 
that  in  such  a  case  the  legatees  shall  concur  and  both  the  clauses  stand, 
simply  because  the  testator  assents  to  his  M'hole  will  at  once  ?  Yet  the 
reasoning  goes  that  length.  If  the  repeal  is  indirect,  by  reason  of  incon- 
sistency or  incongruity,  is  it  not  as  much  a  repeal  as  if  it  were  a  repeal 
in  direct  terms  ?  The  Court,  to  be  sure,  would  be  bound  to  let  the 
former  clause  stand,  if  by  any  construction  it  could  be  made  to  stand. 
But  if  after  resorting  to  all  the  sound  rules  of  construction  the  clauses  be 
found  too  incongruous  to  prevail  together,  the  latter  must  be  regarded  as 
a  repeal  of  the  former,  notwithstanding  both  may  have  been  apparently 
assented  to  at  the  final  execution  of  the  will. 

Accordingly  the  cases  in  which  the  authorities  seem  to  consider  the 
old  doctrines  overruled,  are  cases  where  in  fact  it  never  applied,  and 
where  the  question  really  ought  to  have  been,  whether  the  prior  clauses 
could  be  made  to  stand  with  the  subsequent,  or  whether  the  latter  were 
not  so  inconsistent  with  the  former  as  to  indirectly  repeal  them.  Let  us 
resort  to  this  inquiry. 

Where  the  conflict  is  merely  between  detached  words  or  phrases  in  a 
testamentary  paper,  the  rule  is  to  bring  the  conflicting  phrases  and 
words  together,  and  ascertain  how  the  testator  intended  his  expressions 
thus  scattered  to  affect  and  modify  each  other  :  and  in  doing  this  I  am 
not  aware  that  I  am  warranted  in  saying  that  it  was  ever  held,  but  I 
incline  to  believe,  that  if  it  be  found,  that  if  effect  cannot  be  given  to  all, 
those  must  be  rejected  which  are  first  in  order.  But  that  if  by  modifi- 
*Rfii1  cation  any  effect  can  be  given  to  them,  it  must  be  *given,  and  that 
-^  thus  modifying  each  other  the  whole*  of  the  expressions  will  be 
taken  together,  as  an  exponent  of  the  testator's  intention.  This  is  a 
rule  of  construction.  I  know  of  no  reason  why  the  rule  of  construction 
should  be  different  where  the  conflict  is  between  detached  clauses,  from 
what  it  is  where  the  conflict  is  between  detached  expressions. 

In  this  rule  by  which  detached  and  conflicting  expressions  are  brought 
together  for  construction,  there  is  a  real  want  of  analogy  between  the 
cases  of  two  wills,  and  the  different  parts  of  the  same  will  ;  although  the 
want  of  analogy  on  the  point  of  assent  was,  I  think,  a  mere  supposition. 
"Where  there  are  two  conflicting  wills  there  is  never  any  attempt  to  bring 
them  together  for  the  purpose  of  reconciling  them,  but  the  latter  always 
operates  to  the  extent  of  the  difference  between  them,  as  a  direct  repeal 
of  the  former.  It  is  different  where  the  several  parts  of  the  same  will 
conflict. 

Let  us  now  bring  the  two  clauses  of  this  will  in  question,  together,  and 
see  if  there  be  any  difficulty.  There  would  have  been  no  difficulty,  if  the 
testator,  making  use  of  only  one  clause,  had  said,  "  I  give  my  slave 
George  to  my  son  William  and  my  daughter  Jane  B.,"  limiting  over  the 
share  of  William,  so  and  so,  and  the  share  of  Jane  in  another  way.  If 
he  had,  making  use  of  only  one  clause,  said,  "  I  give  my  slave  George  to 
my  son  William — and  I  give  my  slave  George  to  my  daughter  Jane  B." 
&c.,  would  this,  although  more  at  length,  have  amounted  to  any  thing 
more  than  filling  out  the  words  understood  in  the  sentence  I  have  just 


*364]  COLUMBIA,   DECEMBER,    1833.  249 

before  put  into  his  mouth  ;  which,  thougli  omitted  in  that  sentence,  are 
really  referred  to  by  the  copulative  conjunction  ?  Would  it  have 
amounted  to  any  thing  more  or  less  than  a  gift  of  George  to  the  one  and 
to  the  other  of  his  children — that  is,  to  both  ?  Now  if  this  would  have 
been  the  undeniable  effect  of  usiug  such  expressions  in  one  clause,  is 
there  any  magic  to  change  that  effect,  in  his  employing  two  clauses 
instead  one  ? 

It  was  argued  by  Mr.  Mayrant,  for  the  defendants,  that  the  limitations 
over  made  the  bequests  inconsistent — that  the  clauses  could  not  stand 
together,  on  that  account  ;  and  that  the  latter  clause  must  be  preferred. 
If  the  limitations  over  *are  so  inconsistent  in  enjoyment,  that  they  r>|cof.c 
cannot  stand  together,  or  with  the  interests  of  the  particular  lega-  •- 
tees,  there  is  no  reason  that  the  particular  legatees  should  not  be  made 
to  concur  until  the  time  that  the  limitations  shall  cometotake  effect.  If 
then  they  cannot  be  brought  to  concur,  a  partition  by  sale  would  be 
ordered,  or  the  question  would  then  arise  between  the  two  clauses,  as  to 
the  preference  to  be  given  to  them. 

But  I  see  no  such  incongruity  as  is  supposed.  The  respective 
remainders  limited  over,  are  precisely  of  the  same  extent  as  the  par- 
ticular estates  to  which  they  are  attached.  One  line  of  remainder-men  is 
entitled  to  what  is  given  to  the  plaintiff,  and  another  to  what  is  given 
to  Mrs.  Boon.  Although  the  plaintiff  and  Mrs.  Boone  are  jointly 
interested,  yet  upon  the  death  of  either,  that  tenancy  is  severed,  and  the 
remainder-men  of  his  or  her  line  become  entitled  to  his  or  her  share. 
They  may,  if  they  please,  concur  in  the  enjoyment,  as  tenants  in  common 
with  the  survivor ;  or  if  they  cannot  concur,  they  can  have  partition  by 
sale. 

If  was  argued,  again,  that  the  subject-matter  of  the  bequest  could  not 
be  enjoyed  by  more  than  one,  and  that,  therefore,  the  legatees  could  not 
concur.  That  I  do  not  perceive.  A  slave  may  be  hired  out,  or  he  may 
labor  for  the  joint  benefit  of  a  plurality  of  persons.  But  there  are  cases 
in  which  a  joint  enjoyment  of  the  legacy  cannot  obtain.  What  then  ? 
If  the  legatees  cannot  concur,  they  must  partition  by  sale.  But  the 
objection  is  too  extensive.  I  will  take  the  strongest  case  put  by  the 
counsel.  Suppose  that  the  Pitt  diamond,  or  some  exquisite  painting,  be 
given  to  two  persons  in  two  different  clauses  of  a  will.  If  it  be  contended 
that  the  latter  clause  shall  prevail  over  the  former,  it  must  be  on  the 
ground  that  the  bequest  is  not  susceptible  of  joint-enjoyment.  If  that 
reason  be  allowed  to  prevail,  upon  the  same  reason,  if  such  legacy  were 
given  to  the  same  persons  in  the  same  clause,  it  must  be  declared  void, 
or  the  will  must  be  violated  by  awarding  to  one  of  them  in  exclusiou  of 
the  other. 

I  appi'ehend,  that  in  sueh  a  case  (and  so  also  in  this  *case)  r^ggg 
unless  the  legatees  can  be  brought  to  concur  in  the  enjoyment  or 
disposition  of  the  article  bequeathed  to  them,  it  must,  being  incapable  of 
division,  be  sold,  and  the  avails  distributed.  It  is  no  argument  against 
this,  to  say,  that  an  article,  whose  chief  value  consists  in  taste,  would  be 
sacrificed  by  sale.  That  is  a  matter  exclusively  for  the  consideration  of 
testators,  and  for  the  reflection  of  legatees. — The  same  difficulty  would 
exist,  whether  it  be  disposed  of  in  two  clauses  of  a  will,  or  in  one  only. 
Nor  do  I  see  reason  to  fear  sacrifices.    Granting  that  besides  the  legatees 


250  SOUTH   CAROLINA    EQUITY    REPORTS.  [*366 

the  whole  community  did  not  contain  one  individual  of  taste,  to  appre- 
ciate the  legacy,  I  imagine  the  legatees  themselves  would  prove  com- 
petitors to  each  other,  to  the  extent  of  the  value  they  set  on  it ;  and  that 
neither  would  suffer  himself  to  be  deprived  of  it,  until  he  received  a  price 
at  least  as  gratifying. 

I  must,  therefore,  conclude  in  favor  of  the  plaintiff's  construction  of  the 
will. 

It  is  ordered  and  decreed,  that  the  defendants  do  deliver  up  the  slave, 
George,  the  subject  of  this  suit,  to  the  Commissioner,  who  shall,  at  Sumter 
Court  House,  on  the  first  Monday  of  the  next  month  after  he  shall  have 
received  him,  or  on  the  first  convenient  sale  day  thereafter,  after  having 
given  as  least  fifteen  days  public  notice  thereof,  to  proceed  to  sell  him,  on 
a  credit  of  one  year,  taking  bond  with  good  personal  security,  and  a 
mortgage  of  the  slave,  to  secure  the  purchase  money. — That  upon  the 
collection  of  the  proceeds  of  the  sale,  the  one-half  thereof  be  paid  to  the 
plaintiff,  to  be  held  by  him  subject  to  the  same  limitations  and  conditions 
as  those  upon  which  the  said  slave  was  bequeathed  to  him  by  the  will  of 
John  B.  Fraser  ;  and  that  the  other  half  thereof  be  paid  over  to  the 
defendant,  Thomas  Boone,  in  right  of  his  wife,  Jane  B.,  to  be  held  sub- 
ject to  the  same  limitations  and  conditions  as  those  on  which  the  said 
slave  was  bequeathed  to  the  said  Jane  B.,  by  the  will  of  the  said  testator. 

And  it  is  further  ordered  and  decreed,  that  the  said  Thomas  Boone  do 
pay  the  costs  of  this  suit. 

From  this  decree  the  defendants  appealed,  on  the  grounds  : 
j^q/.h-i       1.   *Because,  where  there  are  inconsistent  clauses  of  a  will  dis- 
-l  posing  of  the  same  property,  the  last  is  a  repeal  of  the  first. 

2.  Because  the  limitations  contained  in  the  two  clauses  of  the  will 
render  them  inconsistent  and  incongruous  with  each  other,  and  the  last 
ought  to  operate,  for  this  reason,  as  a  repeal  of  the  first. 

3.  Because,  in  order  to  give  effect  to  both  clauses,  the  decree  defeats 
the  interest  of  the  remainder-men. 

W.  and  C.  Mayrant,  for  the  appellant, 

Blanding,  contra. 

Johnson,  J.  I  have  entertained  very  great  doubts  about  the  leading 
question  in  this  case,  and  I  confess  that  the  very  able  argument  of  the 
Chancellor,  in  support  of  the  view  which  he  has  taken,  has,  in  some  sort, 
shaken  the  confidence  in  the  early  and  abiding  impression  made  on  ray 
mind,  by  the  maxim  of  Lord  Coke,  that  "  the  first  grant  and  the  last  will, 
is  of  the  greatest  force."  The  question,  so  far  as  I  know,  is  open  in  our 
own  Courts  ;  and  the  great  diversity  of  opinion  on  the  subject,  leaves  the 
Court  at  liberty  to  adopt  that  rule  which  is  most  consistent  with  sound 
policy,  and  the  general  principles  of  law.  The  annotator  of  Lord  Coke 
says,  "  that  there  is  great  contrariety  in  the  books,  on  the  effect  of  two 
inconsistent  devises  in  the  same  will.  Some  hold,  with  Lord  Coke,  that 
the  second  devise  revokes  the  first.  Plow,  541,  note  ;  others,  that  both 
are  void  on  account  of  repugnancy,  (Ow.  84) ;  but  that  the  opinion  of 
the  greatest  number  of  authorities  is,  that  the  devisees  shall  take  in 
moieties."     Co.  Lit.  112,  b   note,  144. 

The  question  is  simply  one  of  construction.     What  did  the  testator 


*367]  COLUMBIA,    DECEMBER,    1833.  251 

intend  ?  and  the  difficulty  consists  in  tlie  selection  of  the  proper  rule. 
That  adopted  by  the  Cliancellor  has  for  its  support  ai)parent  ocputy  ;  but 
that  is  opposed,  according  to  my  view  of  it,  by  the  consideration,  that  in 
the  universal  application,  inequality  would  be  produced.  To  illustrate 
this,  I  would  take  the  case  put  by  the  Chancellor,  of  the  family  picture, 
and  suppose  that  it  had  been  given  in  one  clause  of  the  will  to  a  stranger, 
and  *in  another  to  a  near  and  much  valued  relation.  In  the  r:)jqRQ 
canvass  itself  there  is  no  intrinsic  value,  and  if  the  stranger  takes  L 
the  entire  thing,  he  gets  nothing  of  value  ;  if  the  relative,  he  gets  that 
which  to  him  is  invaluable,  no  price  would  purchase  it.  If  it  be  sold  for 
partition,  the  stranger  takes  advantage  of  the  better  feelings  of  the  rela- 
tive, and  forces  him  to  pay  a  great  price  for  the  one-half  of  that  which 
would  be  worth  nothing  to  the  stranger.  And  the  same  inequality  would 
arise,  m  a  greater  or  less  degree,  in  the  bequest  of  almost  everything 
incapal)le  of  a  partition  in  specie. 

In  resolving  a  question  of  doubtful  intention,  the  Court  ought  to  adopt 
that  conclusion  which  is  the  most  reasonable  and  probable  ;  and  I  think 
I  may  refer  to  the  experience  of  every  member  of  the  profession,  to  sup- 
port me  in  the  position,  that  no  case  has  occurred,  in  which,  judging 
from  extrinsic  circumstances,  a  testator  intending  to  divide  his  property 
between  two  or  more,  has  given  the  whole  to  each  severally.  The  terms 
necessary  to  express  the  intention  are  so  common-place  and  familiar,  that 
no  testator  or  scrivener,  however  ignorant  or  illiterate,  could  be  at  a  loss 
for  them,  and  when  that  was  intended,  it  would  be  expressed  in  some 
form  or  other.  Whilst,  therefore,  we  are  unable  in  cases  of  inconsistent 
devises,  to  fix  with  certainty  the  meaning  of  the  testator,  it  may  be 
affirmed  with  great  confidence,  that  he  did  not  intend  that  the  devisees 
should  take  equally. 

This  view  tends  very  strongly  to  the  conclusion,  that  both  ought  to  be 
rejected,  on  account  of  their  repugnancy  ;  and  yet  it  is  certain  that  the 
testator  intended  to  dispose  of  the  thing  devised,  and  here  the  rule  of 
Lord  Coke  is  most  opportunely  introduced.  Not  that  it  furnishes  a 
certain  guide  to  the  intention  of  the  testator  ;  but  valuable,  on  account 
of  its  simplicity  and  the  facility  of  its  application  ;  and  it  certainly  loses 
nothing  of  its  force  and  authority,  by  Lord  Hardwicke's  dissent  to  the 
reasoning  of  the  modern  cases  opposed  to  it,  in  Ulrich  v.  Litchfield,  2 
Atk.  374. 

There  is  another  consideration  which  very  strongly  inclines  my  judg- 
ment in  favor  of  this  rule.  It  has  been,  as  *before  remarked,  r^ogn 
fixed  in  my  mind,  by  very  early  impressions.  I  believe,  too,  that  ^ 
it  has  been  the  current  opinion  of  the  profession,  and  I  think  that  is  the 
understanding  of  the  community.  One  case  of  the  sort  has  occurred 
within  ray  own  observation,  which  was  precisely  like  this,  (inconsistent 
bequests  of  a  negro)  and  was  adjusted  by  this  rule ;  and  it  is  not  impro- 
bable that  many  others  have  occurred,  and  have  not  been  brought  into 
litigation  on  account  of  the  supposed  propriety  of  the  rule. 

It  is  therefore  ordered  and  decreed,  that  the  decree  of  the  Circuit 
Court  be  reversed,  and  that  the  complainant's  bill  be  dismissed,  with 
costs. 

O'Neall  and  Harper,  Js.,  concurred. 


252  SOUTH   CAROLINA   EQUITY    REPORTS.  [*369 


Dawkins  and  Littlejohn  vs.  Daniel  Smith. 

Judgments  bind  lands  throughout  the  State  when  abstracts  of  them  have  been 
forwarded  to  the  Clerk  in  Charleston.  And  where  judgment  was  obtained  in  one 
District,  and  land  lying  iu  another  was  afterwards  sold  by  the  defendant: — Held, 
that  it  will  be  presumed  that  an  abstract  was  forwarded  to  Charleston,  and  that 
the  land  was  bound  by  the  judgment.  [*369] 

York,  June,  1833.  This  was  a  petition  praying  that  a  judgment  the 
plaintiffs  had  obtained  at  Union  Court  House,  might  be  satisfied  out  of 
the  proceeds  of  the  sale  of  a  tract  of  land  sold  by  the  Ordinary  of  York 
District,  to  make  partition  among  certain  distributees,  of  whom  the 
defendant  was  one. 

The  defendant  in  his  answer  stated  that  he  had  sold  his  interest  in  the 
land  to  Aaron  Wilkins,  for  a  valuable  consideration  ;  and  Wilkins  who 
was  permitted  to  come  in,  in  his  answer  alleged  the  same  fact,  and  that 
he  had  no  notice  of  the  judgment.  The  sale  to  Wilkins,  however,  was 
subsequent  to  the  judgment.  Chancellor  Johnston  dismissed  the  petition, 
and  the  plaintiff  appealed. 

DaiL'kins,  for  the  appellant. 

Rogers,  contra. 

Johnson,  J.  The  ground  on  which  the  complainant's  petition  was 
^qwrj-|  dismissed,  is  not  distinctly  stated  in  the  order  of  the  *Circuit 
-•  Court,  but  it  is  understood  to  have  been  founded  on  the  circum- 
stance that  Wilkins  was  a  purchaser  from  Smith  without  notice  of  the 
prior  incumbrance  of  the  complainant's  judgment.  The  case  of^Yood- 
ward  V.  Hill,  3  M'Cord,  241,  decides  that  the  judgments  of  the  Circuit 
Court  bind  lands  throughout  the  State,  when  abstracts  of  them  have 
been  forwarded  to  the  Clerk  of  the  Court  for  Charleston  District,  to  be 
recorded  conformably  to  the  Act  of  1789;  and  in  the  absence  of  any 
proof  on  the  subject,  it  will  be  presumed  that  the  officers  charged  with 
that  duty  have  discharged  it.  It  is  then  the  case  of  a  judgment  having 
a  binding  elfect  on  lands  of  which  every  one  is  bound  to  take  notice. 
The  object  of  recording  them  in  Charleston,  was  to  have  some  common 
place  to  which  all  might  resort  for  information;  and  if  with  these  means 
Wilkins  neglected  to  inform  himself,  it  is  his  own  folly  and  he  must  take 
the  consequences. 

It  is  therefore  ordered  and  adjudged,  that  the  order  of  the  Circuit 
Court  dismissing  the  plaintiff's  petition  be  reversed,  and  that  the  case  be 
remanded  to  the  Circuit  Court  for  trial  on  the  merits,  conformably  to  the 
principles  herein  laid  down. 

O'Neall,  J.,  concurred. 


'370]  COLUMBIA,    DECEMBER,    1833.  258 


James  Robertson,  and  others,  vs.  Edward  Collier  and  Wife,  and 

others. 

Principles  applicable  to  a  bequest  for  life  of  chattels  consumable,  or  wearing  out, 
in  the  use.  [*373] 

Where  an  estate,  consisting  of  a  plantation  and  slaves,  stock,  farming  utensils  &c  , 
are  devised  to  one  for  life  (or  widowhood)  the  perishable  articles  cannot  be 
considered  as  belonging  absolutely  to  the  tenant  for  life. — The  tenant  for  life  will 
be  considered  as  a  trustee  for  the  remainder-man,  and  must  preserve  the  estate, 
with  all  its  appurtenances,  in  the  same  situation  in  which  it  was  received.  [*374] 

Bill  for  account  and  partition,  heard  before  Chancellor  De  Saussure, 
at  Abbeville,  June,  1833. 

George  Robertson,  deceased,  by  his  last  will  and  testament,  executed 
in  1817,  devised  and  bequeathed  to  his  wife,  viz.:  "I  also  give  her, 
during  her  widowhood,  the  whole  of  the  interest  and  profit  arising  from 
my  estate  real  and  personal,  except  so  much  thereof  as  may  be  necessary 
for  *the  education  and  maintenance  of  my  children,  hereinafter  r^oh-i 
mentioned.  But  in  case  of  her  marrying  again,  in  place  of  the  ^ 
before-mentioned  use  and  disposal  of  the  whole  of  the  interest  and  profit 
arising  from  my  estate,  I  give  her  one-third  part  of  the  whole  of  my 
estate,  real  and  personal,  to  be  hers  and  to  be  at  her  disposal  forever  ;" 
and  the  residue  he  directed  to  be  divided  between  his  children,  after 
applying  so  much  as  might  be  necessary  for  their  education  and  main- 
tenance until  the  period  fixed  for  distribution.  By  another  clause  he 
declared,  that  "should  my  hereinafter-named  executrix  and  executor, 
think  it  necessary,  or  for  the  advantage  of  the  estate,  to  sell  or  dispose 
of  all  or  any  part  of  my  estate,  real  and  personal,  I  do  hereby  authorize 
them  to  do  so,  the  money  arising  from  such  a  sale,  to  be  laid  out  in  such 
bank  stock  as  they  may  think  most  advisable ;  the  interest  arising  there- 
from to  be  applied  as  before  directed ;"  and  appointed  his  wife  executrix, 
and  John  M'Calla,  executor. 

At  first  M'Calla  alone  qualified.  He  sold  all  the  property  except  the 
plantation  and  the  negroes,  and  other  personalty  on  it;  and  having  paid 
the  debts,  vested  the  balance  of  the  sales  in  bank  stock.  After  the  tes- 
tator's death,  the  widow  continued  to  reside  with  the  family  on  the  plan- 
tation, having  the  possession  and  use  of  the  negroes  and  other  property 
during  her  widowhood,  and  supporting  and  educating  the  children.  The 
executor  had  made  an  inventory  and  appraisement  of  this  property,  and 
on  delivering  it  to  the  widow,  had  taken  her  receipt,  by  which  she 
acknowledged  the  property  was  to  be  accounted  for,  as  the  will  directed. 
Of  the  property  thus  held  by  her,  there  was  personalty  appraised  at 
$4,318  28,  which  consisted  of  perishable  articles,  such  as  were  consumable 
in  the  use,  and  such  as  could  not  be  expected  to  outlast  an  ordinary  life- 
time. In  1821,  the  widow  intermarried  with  the  defendant,  Ed.  Collier, 
and  consequently  her  right  to  the  enjoyment  of  the  whole  estate  for  life 
ceased,  and  she  became  entitled  to  one-third  thereof  absolutely,  according 
to  the  provisions  of  the  will.  Shortly  afterwards  she  qualified  as 
executrix. 


254  SOUTH  CAROLINA   EQUITY   REPORTS.  [*372 

j^„^g-l  *The  case  came  before  the  Court,  on  exceptions  to  tbe  Com- 
-•  missioner's  Report.  Several  questions  were  made,  but  the  prin- 
cipal and  only  one  which  it  is  thought  necessary  to  notice  was,  as  to  the 
liability  of  Collier  and  wife,  for  the  property  received  by  her,  which  was 
perishable  in  its  nature,  and  consumable  in  the  use.  The  Commissioner, 
in  his  report,  did  not  charge  them  with  this  property ;  and  the  plaintiffs 
excepted  thereto,  "Because  the  Commissioner  has  not  charged  Ed. 
Collier  and  wife  with  the  property  received  by  her,  which  was  consuma- 
ble in  the  use,  and  that  which  was  perishable  in  its  nature,  amounting  in 
the  aggregate,  to  $1,318  28,  a  part  of  which  having  been  consumed  in 
the  ordinary  course  of  husbandry,  and  the  residue  having  perished  or 
been  worn  out  by  Mrs.  Collier  and  her  husband;  whereas,  by  the  will, 
"  the  interest  or  profit,"  only  of  said  property  is  given  to  Mrs.  Collier, 
during  her  widowhood,  and  one-third  thereof  absolutely,  on  her  mar- 
riage. " 

The  Chancellor  sustained  the  exception,  and  the  defendant  appealed, 
on  the  ground  : 

That  the  devise  to  the  widow  during  her  widowhood,  is  coupled  with 
a  trust  to  maintain  and  educate  the  children,  is,  both  in  its  terms  and 
substance,  a  devise  as  well  to  the  children  as  to  their  mother,  and  by  the 
whole  context  it  is  apparent,  that  the  use  intended  was  a  use  of  the 
property  in  ^■«?'^/ and  not  in  value;  and  therefore  the  defendants  were 
not  bound  to  account  for  any  but  what  remained  of  it  at  the  termination 
of  the  particular  estate. 

Boivie,  for  the  defendant,  cited  Howe  v.  Earl  of  Dartmouth,  7  Yes. 
131.  He  argued  that  it  was  a  question  of  intention,  whether  the  testator 
intended  his  widow  to  enjoy  his  property  in  kind  or  in  value.  That 
having  left  it  to  her  discretion,  whether  it  should  be  sold  and  what  part, 
shows  his  intention  that  she  should,  if  she  chose,  enjoy  it  as  such  property 
is  usually  enjoyed.  And  being  charged  with  the  maintenance  of  the 
children,  the  testator  must  have  known,  and  intended  that  it  should  be 
^otTO-i  enjoyed  in  kind;  and  *that  only  such  part  as  remained,  on  the 
-^  death  or  marriage  of  the  widow,  and  in  the  condition  it  then  was, 
should  be  given  over  in  remainder. 

Pope,  contra,  contended,  on  the  authority  of  Devlin  v.  Patterson,  that 
the  tenant  for  life  is  accountable  for  the  value  of  perishable  property. 
The  intention  here  is  manifest,  for  the  testator  gives  only  "the  interest 
and  profit"  of  the  property  in  express  terms,  which  is  opposed  to  the 
idea  of  its  destruction.  The  very  direction  to  sell,  shows  a  different 
intention ;  for,  would  the  testator  have  directed  a  sale  of  property  which 
he  intended  should  be  consumed  in  the  use,  or  worn  out  by  enjoyment  ? 
The  executors  ought  to  have  sold  this  property,  and  this  would  have 
ousted  this  absolute  right  now  claimed,  and  not  having  done  so,  if  the 
estate  should  suffer  in  consequence,  Mrs.  Collier,  as  executrix,  would  be 
liable  for  a  breach  of  trust.  The  testator  gives  his  widow  one-third  of 
his  estate,  if  the  construction  contended  for  should  prevail,  she  will  have 
received  about  one-half. 

Harper,  J.  The  whole  estate  was  devised  to  Mrs.  Robertson  during 
widowhood,  subject  to  a  charge  for  the  maintenance  and  education  of  her 


*373]  COLUMBIA,   DECEMBER,    1833.  255 

children.  The  annexing  of  this  charge  can  make  no  difference  in  other 
respects  as  to  her  duties  and  liabilities  as  tenant  for  life.  The  case  of 
Devlin  v.  Patterson, (a)  decided  by  this  Court  and  referred  to  by  the 
Chancellor,  was  chiefly  relied  on  as  settling  the  principles  which  are  to 
be  applied  in  the  case  before  us.  The  general  conclusions  in  that  case 
are,  that  if  chattels,  strictly  consumable  in  the  use,  such  as  corn,  wine, 
&c.,  be  given  speciJicoJly  to  one  for  life  with  remainder  over,  the 
remainder  is  void,  as  being  inconsistent  with  the  only  nse  which  the 
tenant  could  make  of  them.  If  there  be  a  similar  bequest  of  articles 
wearing  out  in  the  use,  such  as  farming  utensils,  &c.,  the  remainder-man 
must  take  them,  or  such  of  them  as  remain,  in  the  condition  they  are  in 
at  the  termination  of  the  life  estate,  deteriorated  l>y  the  use  of  the  tenant 
for  life.  But  if  such  chattels  be  given  by  a  residuary  bequest,  compre- 
hending various  articles,  they  are  to  be  sold  and  the  money  vested  ;  the 
tenant  for  life  to  receive  the  interest,  and  after  his  death,  the  remainder- 
man* to  have  the  principal.  The  consequence  is,  that  the  tenant  r^o^A 
for  life  accounts  to  the  remainder-man  for  all  articles  of  the  L 
description  mentioned,  at  the  value  which  they  have  at  the  commence- 
ment of  the  estate  for  life. 

In  the  case  before  us,  the  devise  was  not  strictly  of  a  residue  but  of  an 
estate,  There  was  no  bequest  of  corn,  ploughs,  carts,  horses  or  mules, 
but  of  an  estate  comprehending  all  these  particulars,  as  well  as  lands  and 
slaves  ;  and  it  seems  to  me  to  come  within  the  reason  of  the  rule  which 
has  been  applied  to  the  bequest  of  a  residue.  In  this  case,  however,  the 
legatee  was  not  bound,  nor  could  she  have  been  compelled,  to  sell  the 
estate  and  vest  the  proceeds.  From  the  power  given  to  the  executrix 
and  executor  to  sell  any  part  or  all  of  the  estate  as  they  may  think  neces- 
sary or  advisable,  is  plainly  implied,  that  if  they  think  proper  they  may 
retain  and  use  it  in  kind,  without  sale,  and  hence  it  is  inferred,  that  if 
they  think  proper  to  retain  it,  they  are  to  account  for  perishable  articles 
as  if  these  had  been  specifically  bequeathed.  The  inference  does  not 
seem  to  be  legitimate.  The  option  given  by  the  testator  was  for  the 
benefit  of  his  estate ;  and  it  would  seem  unreasonable  that  by  adopting 
one  course  the  devisee  should  have  an  unlimited  power  of  disposition 
over  a  large  portion  of  the  estate — to  consume  or  wear  out — while  by 
the  other,  she  would  be  compelled  to  account  for  every  article  as  she 
received  it. 

An  extract  from  the  opinion  of  Judge  Nott,  in  the  case  of  Devlin  v. 
Patterson,  will,  I  think,  put  the  matter  upon  its  true  footing.  "  Tliere 
is  another  view  of  the  subject  which  deserves  consideration,  and  which  is 
somewhat  peculiar  to  the  situation  of  this  country  Lands  are  sometimes 
given  to  one  for  life,  together  with  the  slaves,  stock  of  horses,  cattle  plan- 
tation tools  and  provisions,  with  a  limitation  over.  In  such  case,  the 
perishable  articles  cannot  be  considered  as  belonging  absolutely  to  the 
tenant  for  life  :  neither  can  they  be  sold  ;  because  they  are  necessary  for 
the  preservation  of  the  estate.  The  tenant  for  life  must  therefore  be 
considered  as  a  trustee  for  the  remainder-man,  and  must  preserve  tne 
estate,  with  all  its  appurtenances,  in  the  same  situation  in  which  he 


(a)  Columbia,  1829— not  reported-  opinion  lost  or  mislaid.— R. 


256  SOUTH   CAROLINA  EQUITY   REPORTS.  [*374 

received.  He  may  therefore  be  required  to  give  an  inventory  of 
_p.-,  *the  property,  or  security  for  its  preservation  according  to  cir- 
-J  cumstances.  The  tenant  for  life  will  be  entitled  to  the  increase 
of  the  stock  and  the  rents  and  profits  of  the  land  ;  but  he  must  keep  up 
the  stock  of  cattle,  horses,  provisions  and  instruments  of  husbandry,  in 
the  condition  in  which  he  received  them.  For  although  some  of  the 
articles  may  be  consumable  in  the  use  and  others  are  wearing  out  by  the 
attrition  of  time,  yet  when  taken  altogether,  being  reproductive,  the  estate 
must  be  made  to  keep  up  its  own  repairs."  These  views  are  so  full  and 
explicit,  that  little  need  be  added  to  them.  The  principle  is  the  same, 
though  extended  in  its  application,  by  which  a  tenant  for  life  in  England  is 
forbidden  to  waste  the  estate,  and  is  required  to  make  ordinary  repairs,  or 
any  other  tenant  is  required  to  treat  the  estate  in  a  husband-like  manner, 
or  the  legatee  for  life  of  a  flock  or  herd  while  he  takes  the  increase,  is 
required  to  keep  up  the  original  stock.  The  tenant  for  life  is  entitled  to 
the  use  of  the  estate;  but  it  is  such  use  as  a  prudent  proprietor  would 
make  of  his  estate.  The  profit  of  an  estate  is  the  nett  income  after 
defraying  all  necessary  expenses ;  and  to  renew  a  plough  that  is  worn 
out,  or  replace  a  horse  or  mule  that  dies,  comes  under  the  head  of  neces- 
sary expenses.  Thus  the  relative  rights  of  the  tenant  for  life  and  remain- 
der-man, will  be  the  same,  whether  the  estate  be  sold  and  the  proceeds 
vested  or  retained  in  kind.  If,  at  the  termination  of  the  life  estate,  all 
the  articles  of  the  sort  mentioned  are  not  in  as  good  condition  as  when 
he  received  it,  the  tenant  must  make  good  the  deficiency. 
The  decree  of  the  Chancellor  is  therefore  affirmed. 

Johnson  and  O'Neall,  Js.,  concurred. 


^o^n-i  *JoHN  RiDDLEHOovER,  and  others,  v.  John  M  Kinard,  Admin- 
^     J       istrator  of  John  P.  Kinard  and  J.  T.  Sligh,  Administrator  of 
Catharine  Kinard,  and  others. 

Where  one  being  sole  legatee  under  a  will  administered  with  the  will  annexed,  took 
possession  of  the  property  and  held  it  for  upwards  of  twenty  years  and  the  will 
was  then  declared  void  and  the  probate  revoked: — Held,  that  this  possession 
conferred  title  as  against  all  persons  who  were  not  under  legal  disabilities,  and 
that  after  such  a  lapse  of  time  the  Court  will  presume  whatever  is  necessary  to 
give  efScacy  to  the  possession.  [*378] 

The  legatee  having  married,  her  huand  obtained  possession  of  the  property: — Held, 
that  the  marital  rights  attached  as  against  those  who  were  not  under  disabilities. 
[*382] 

Uriah  Wicker  being  possessed  of  considerable  real  and  personal  estate, 
died  in  1808,  without  issue,  leaving  a  widow,  Catharine,  and  brothers  and 
sisters,  and  their  descendants,  all  of  whom,  except  the  children  of  a 
deceased  brother  (John)  were  of  age.  An  instrument  purporting  to  be 
a  will,  and  alleged  to  have  been  duly  executed,  bequeathing  his  entire 
personal  estate  to  his  widow,  Catharine  Wicker,  was  proved  in  common 
form,  and  letters  of  administration  with  the  will  annexed,  granted  to  her. 


[*3n 


*376]  COLUMBIA,   DECEMBER,    1833.  257 

She  took  possession  of  the  whole  estate,  made  an  appraisement,  and  sold 
off  a  portion  of  the  personalty,  but  made  no  returns  to  the  Ordinary,  and 
continued  in  the  possession  and  enjoyment  of  the  balance  for  many  years. 
She  afterwards  intermarried  with  John  P.  Kinard,  who  thereby  became 
united  with  her  in  the  possession  of  the  estate,  and  in  the  administration. 
Catharine  Kinard  (Wicker)  died  in  1826,  intestate,  and  without  issue,  her 
husband,  John  P.  Kinard,  and  mother,  Mrs.  Sligh,  her  surviving.  After 
her  death,  her  husband,  John  P.  Kinard,  continued  in  the  possession  of 
the  estate,  as  theretofore,  and  received  the  renis  and  profits,  till  his  death, 
in  1828.  He  died  intestate,  without  issue,  leaving  brothers  and  sisters  ; 
and  his  brother,  J.  M.  Kinard,  one  of  the  defendants,  administered  on 
his  estate,  possessed  himself  of  the  property  so  held  by  his  intestate,  and 
made  sale  thereof.  In  the  year  1830,  on  some  discovery  of  facts,  a  peti- 
tion was  presented  to  the  Ordinary,  requiring  proof  of  the  alleged  will  in 
solemn  form.  The  Ordinary  decreed  against  the  will,  and  revoked  the 
probate.  On  appeal  to  the  Court  of  Common  Pleas,  his  decree  was 
sustained  by  the  verdict  of  a  jury,  and  finally  confirmed  by  the  Court  of 
Appeals,  in  1832.  After  this,  the  plaintiffs  administered  on  the  estate  of 
Uriah  Wicker,  and  are  entitled  to  distributive  shares  of  a  moiety  thereof. 
In  1833,  John  T.  Sligh  administered  on  the  estate  of  Catharine  Kinard. 

*The  original  bill  was  filed  in  1829  for  partition  of  the  real 
estate,  and  after  the  will  had  been  set  aside  the  plaintiffs  filed  a 
supplemental  bill.  They  state  that  they  are  unwilling  to  disturb  the 
purchasers  of  such  of  the  property  as  has  been  sold,  but  on  having  the 
purchase  money  accounted  for,  will  confirm  the  sale.  That  the  share  of 
Catharine  Kinard  in  the  estate  of  Uriah  Wicker,  was  not  reduced  into- 
possession  by  her  second  husband,  John  P.  Kinard,  so  as  to  vest  in  him, 
especially  as  the  will  was  set  up  surreptitiously  and  fraudulently,  whicL 
was  known  to  him ;  but  that  the  said  share  vested  in  J.  T.  Sligh,  her 
administrator,  and  is  distributable.  The  bill  prays  for  an  account  and 
partition. 

The  answers  set  up  various  grounds  of  defence,  put  the  principal  points- 
made  and  insisted  on  in  the  argument  were : 

1.  That  the  estate  of  John  P.  Kinard  should  not  be  held  liable  for  a 
devastavit  (if  any)  committed  by  the  wife  dum  sola,  no  recovery  being 
had  during  coverture. 

2.  That^Mrs.  Kinard  held  adversely  to  the  plaintiffs,  and  lapse  of  time 
and  the  statute  of  limitations  ought  to  protect  the  possession  of  the  pro- 
perty in  her  and  her  husband. 

3.  That  the  marital  rights  of  John  P.  Kinard,  atttached  on  the  pro- 
perty held  by  him,  and  consequently  his  representatives  were  not  liable 
to  account  therefor. 

The  case  came  to  a  hearing  before  Chancellor  De  Saussure,  at  New- 
berry, July,  1833.  The  Chancellor  decreed  against  the  defendants  on 
the  points  made,  and  ordered  and  decreed  the  administrator  of  John  P. 
Kinard  to  account  for  the  estate  which  went  into  the  possession  of  his  wife, 
as  administratrix  with  the  will  annexed  ;  and  tliat  bona  fide  purchasers 
of  any  part  of  the  estate,  be  quieted  in  their  purchases ;  the  defendant  to 
account  for  the  proceeds  of  the  sale. 

From  this  decree  the  defendant,  J.  M.  Kinard,  appealed,  on  the  grounds 
taken  below. 

Vol.  I.— 17 


258  SOUTH    CAROLINA   EQUITY    REPORTS.  [*377 

J.  J.  CaldiceJl,  for  the  appellant,  argued,  that  as  to  the  account  for 
rents  and  profits,  it  can  only  be  claimed  from  the  entry,  7  T.  R.  433 ;  lb. 
727  ;  13  East.  474;  and  it  cannot  be  carried  back  more  than  four  years 
before  the  filing  of  the  bill,  1  Atk.  524  ;  2  M'C.  Ch.  317.  As  regards 
j^  -,  *the  lapse  of  time,  he  contended,  that  according  to  adjudged 
-J  cases,  it  conferred  a  perfect  title,  and  the  minority  of  some  of 
the  parties  could  not  defeat  the  legal  presumption  arising  from  lapse  of 
time — differing  herein  from   the  statute  of  limitations — and  cited  and 

relied  on  Hutchinson  v.  Noland,  1  Hill,  222  ;  Foster  v.  Brown, ; 

4  Bro.  Ch.  256. 

Fair,  contra.  The  Court  held  the  plaintilfs  to  be  in  time  when  they 
set  aside  the  will,  and  of  course  they  are  entitled  to  the  account.  So  long 
as  the  will  stood  in  force  they  had  no  right  of  action  and  consequently 
cannot  be  barred.  Nor  was  there  laches  in  the  plaintiffs — they  were  kept 
in  ignorance  of  their  rights  by  the  fraudulent  conduct  of  Mrs.  W.  ;  and 
in  equity,  all  those  who  received  the  property  with  knowledge  of  the  cir- 
cumstances would  be  considered  trustees.  He  cited  8  Stark,  on  Ev. 
1217-27  ;  2  Eng.  Ch.  Rep   200. 

Harper,  J.  I  shall  first  consider  the  ground  of  defendant's  motion, 
which  respects  the  lapse  of  time  or  the  statute  of  limitations.  Defend- 
ants, or  those  under  whom  they  claim,  had  been  in  possession  of  the  estate, 
claiming  it  as  their  own,  for  more  than  twenty  years  before  the  filing  of 
the  bill.  Probate  of  the  will  M'as  granted  in  1808,  and  the  bill  filed  in 
1829.  And  it  may  be  observed  that,  at  the  time  of  filing  the  bill,  com- 
plainant had  no  right  of  action,  as  the  will  was  then  in  existence.  It  was 
in  1830,  that  the  application  was  made  to  revoke  the  probate.  If  there 
had  been  no  will  and  no  administration,  and  defendants  without  color  of 
title,  had  taken  possession  of  the  property  and  kept  it  for  so  long  a  time, 
I  suppose  their  title  would  be  good,  under  the  decisions  in  Reed  v.  Price, 
State  Rep.  1,  and  Hutchinson  v.  Noland,  1  Hill,  222.  Administration 
would  have  been  presumed  and  that  defendants  had  acquired  a  title  from 
the  administrator.  The  lapse  of  twenty  years  is  sufficient  to  raise  the 
presumption  of  a  grant  from  the  State,  of  the  satisfaction  of  a  bond, 
mortgage  or  judgment,  of  the  grant  of  a  franchise  or  the  payment  of  a 
legacy,  or  almost  anything  else  that  is  necessary  to  quiet  the  title  of  pro- 
perty. After  twenty  years  a  bill  of  review  will  not  lie.  This  is  the 
-j,quq-|  general  equitable  bar.  *It  may  be  true,  in  general,  as  stated  in 
-'  the  case  between  the  same  parties  brought  up  on  appeal  from  the 
ordinary,  that  when  the  goods  of  an  intestate  are  converted,  the  cause  of 
action  arises  from  the  time  of  granting  administration,  and  from  that  time 
the  statute  will  begin  to  run.  But  the  cases  to  which  I  have  referred 
show,  that  there  is  a  distinction  wlien  we  come  to  consider  the  presump- 
tion arising  from  lapse  of  time.  If  defendants  would  have  been  protected 
if  there  had  been  no  administration  or  probate,  what  makes  the  case 
worse  for  them  under  present  circumstances  ?  Is  it  that  instead  of  being 
trespassers  committing  a  known  wrong,  they  took  possession  under  an 
apparently  good  title,  for  aught  that  appears,  bona  fide,  believing  the 
property  to  be  their  own  ?  Their  possession  was  still  adverse  ;  they 
claimed  for  themselves ;  this  was  known  to  all  the  world,  and  must  be 


*379]  COLUMBIA,   DECEMBER,    1833.  259 

presumed  to  have  been  known  to  the  complainants.  It  is  rcjilied  tliat 
complainants  (I  speak  of  those  who  were  of  full  age  at  the  time  of  probate 
prranted)  were  under  a  disability  ;  they  could  not  sue  while  the  will  was 
in  existence  ;  they  were  misled  by  the  granting  of  the  probate,  and  igno- 
rant of  their  rights;  in  the  language  of  the  Chancellor,  "they  wanted 
light  and  liberty."  It  is  also  said  that  they  took  possession  in  the 
character  of  trustees  and  it  does  not  appear  when  that  possession  termi- 
nated, and  that  you  cannot  make  the  usual  presumptions.  You  cannot 
presume  an  administration,  for  probate  is  shown  and  the  will  under  which 
they  claimed.  Nor  can  you  presume  a  valid  will  giving  the  pro]ierty  to 
them,  for  the  recent  decision  of  the  Ordinary  affirmed  by  the  Court,  shows 
that  there  was  no  will. 

It  is  true  that  the  complainants  could  not  have  sued  while  the  will  was 
in  existence;  nor  in  the  cases  of  Reid  and  Price  and  Hutcliinson  and 
Noland,  could  there  have  been  a  suit  till  administration  granted.  By  whose 
laches  was  the  will  permitted  to  continue  in  existence  so  long.  According 
to  our  decision  in  the  case  of  the  will,  the  parties  who  were  of  full  age  at 
the  time  of  the  probate,  had  no  right  to  contest  the  will  after  a  lapse  of 
four  years ;  shall  they  be  permitted  to  contest  rights  claimed  under  the 
will  after  a  lapse  of  twenty  ?  As  observed  by  the  Chancellor,  the  com- 
plainants, or  those  *whom  they  represent,  certainly  knew  that  they  r;i:ooA 
were  the  next  of  kin  to  Uriah  Wicker,  and  in  default  of  a  will  ^ 
entitled  to  his  estate.  They  must  be  yjresumed  to  have  known  of  the  will, 
of  which  they  were  so  much  interested  to  be  informed.  The  Ordinary's 
office  was  open  to  them  and  they  might  have  known  how  the  will  was 
proved,  and  most  probably  did  know.  They  might  then  have  obtained 
legal  advice  upon  the  sufliciency  of  proof,  and  cited  the  administratrix  to 
prove  the  will  in  solemn  form.  Under  what  disability  did  they  labor 
then,  which  was  removed  when  the  application  was  made  to  the  Ordinary, 
in  1830?  In  the  case  of  Nicks  v.  Martindale,  State  Rep.  135,  it  was 
held  that  the  statute  of  limitations,  which  had  begun  to  run  against  an 
intestate,  was  not  after  his  death  suspended  until  administration  granted, 
on  the  ground  that  it  was  the  fault  of  those  interested  in  the  estate  not  to 
have  taken  out  administration  sooner.  Was  it  not  the  fault  of  the  com- 
plainants not  to  have  sooner  contested  the  will  ?  If  twenty  years  was 
not  sufficient  to  mature  defendant's  title  what  time  would  have  sufficed  ? 
thirty  ?  fifty  ?  a  century  ?  Rights  consecrated  by  time  must  not  be  held 
by  so  impalpable  a  tenure. 

Then  as  to  taking  possession  in  a  fiduciary  character.  By  adminis- 
tering cum  tedamenio  anvexo,  Catharine  Wicker  took  possession  as 
trustee  for  herself,  and  this  was  as  adverse  to  all  the  rest  of  the  world  as 
if  the  executors  appointed  by  the  will  had  qualified  and  delivered  the 
estate  to  her  as  legatee.  It  was  immaterial  whether  she  held  as  adminis- 
tratrix or  legatee.  It  is  said,  we  cannot  presume  either  a  general 
administration  or  a  valid  will.  It  is  hardly  necessary  to  say  that  legal 
presumptions  are  not  founded  on  actual  belief  As  observed  by  Lord 
Erskine  in  Hillary  r.  Waller,  12  Yes.  267,  "mankind,  from  the  infirmity 
and  necessity  of  their  situation,  must,  for  the  preservation  of  their  property 
and  rights  have  recourse  to  some  general  principle  to  take  the  i)lace  of  indi- 
vidual and  specific  belief."  In  the  Mayor  of  Hull  v.  Horner,  Cowp.  162, 
the  grant  of  certain  duties  to  the  corporation  of  Kingston  upon  Hull  was 


260  SOUTH    CAROLINA    EQUITY    REPORTS.  [*380 

presuraed  from  long  usage,  though  their  charter  was  produced  which  con- 
tained no  such  grant.  So  in  the  case  of  Bedle  v.  Beard  there  quoted,  12 
Co.  5,  the  grant  of  an  advowson  appendant  to  a  manor  was  presumed 
*Qsil  *fi"0'^  possession,  though  the  grant  of  the  manor  was  produced 
-I  whicli  did  not  include  the  avowdson.  Presumptions  must  be 
sometimes  made  against  the  well-known  truth  of  the  fact.  If  twenty  years 
have  elapsed  without  the  payment  of  interest  or  any  acknowledgment  of 
a  bond,  we  must  presume  it  paid,  notwithstanding  the  fullest  conviction 
that  it  never  has  been  paid.  In  Hutchinson  v.  Noland,  it  was  proved 
by  the  Ordinary  that  no  administration  had  ever  been  taken  out  till  granted 
to  the  plaintiff.  As  said  in  that  case,  we  will  presume  whatever  is  neces- 
sary to  give  efficacy  to  long  possession.  If  it  were  necessary  to  make 
any  specific  presumption  in  this  case,  I  would  presume  that  the  parties 
who  were  of  full  age  at  the  time  of  the  probate,  released  to  Catharine 
Wicker  their  interest  in  the  estate,  or  their  right  to  contest  the  will.  The 
probate  cannot  be  regarded  as  revoked  at  their  suit,  but  at  the  suit  of 
those  who  were  under  disability. 

It  is  stated  in  the  bill,  and  admitted  by  the  answer,  that  all  the 
brothers  and  sisters  of  Uriah  Wicker  (who  were  his  next  of  kin)  were 
living  and  of  full  age  at  the  time  of  his  death.  It  appears  from  the  testi- 
mony, however,  and  seemed  to  be  conceded  at  the  hearing,  that  one 
brother  (John)  was  then  dead,  having  left  infant  children.  Those  who 
represent  the  other  brothers  and  sisters  are  barred  by  the  lapse  of  time ; 
and  as  to  them,  the  bill  must  be  dismissed  with  costs.  The  children  of 
John  Wicker  who  came  of  age  within  four  years  next  before  the  filing  of 
the  bill,  are,  I  think,  entitled  to  an  account.  But  on  the  authority  of 
Eowland  v.  Best,  2  M'C  Ch.  Rep.  311,  I  think  it  must  be  without 
interest  until  the  bill  filed.  It  is  not  stated  in  that  case,  that  the  parties 
entitled  to  the  estate  were  infants.  The  infancy  of  some  of  the  parties 
in  this  case  saves  their  right  to  an  account ;  but  the  claim  to  interest  is 
within  the  discretion  of  the  Court,  according  to  the  equity  of  circum- 
stances. The  defendants,  or  those  under  whom  they  claim,  believed 
themselves  the  owners  of  the  property,  and  had  good  reason  so  to  believe. 
In  this  confidence  they  expended  the  income,  and  it  would  be  hard, 
approaching  to  the  effect  of  fraud,  to  call  upon  them  to  account  for  what 
5^009-1  they  have  thus  expended.  A  man  is  not  supposed  *to  expend  the 
"'-^  capital  of  his  estate,  but  he  may  justly  be  presumed  to  expend  the 
income. 

Questions  are  made,  whether  John  B.  Kinard  is  liable  for  the  devastavit, 
us  it  is  called,  of  his  wife,  and  whether  his  marital  rights  attached  on  the 
property  in  his  possession.  Catharine  Wicker  sold  the  whole  estate,  and 
John  Kinard  very  soon  after  married  her.  In  point  of  fact  there  is  little 
doubt  that  the  whole  of  the  proceeds  went  into  his  possession.  fa 
respect  to  the  assets  thus  received,  he  became  liable  as  administrator,  in 
right  of  his  wife,  to  any  one  who  had  a  claim  on  the  estate  of  Uriah 
Wicker.  There  is  no  question  of  devastavit;  but  I  think  the  marital 
rights  must  be  held  to  have  attached  as  against  all  the  world,  but  the 
parties  (children  of  John  Wicker)  who  are  entitled  to  relief  under  this 
decree.  Suppose  the  will  to  have  been  a  valid  one,  would  there  have 
been  any  question  as  to  the  attaching  of  the  marital  rights  ?  An  executor 
who  is  also  legatee,  may,  by  the  slightest  act,  signify  his  intention  to  take 


*382]  COLUMBIA,    DECEMBER,    1833.  261 

possession  in  his  character  of  legatee,  and  terminate  his  possession  as 
executor.  If  the  will  had  been  valid,  and  Kinard  and  wife  entitled, 
under  it,  to  the  whole  estate,  could  any  thing  be  more  extravagant  than 
to  suppose,  that  during  the  twenty  years  that  he  possessed  the  estate  and 
dealt  with  it  as  his  own,  he  continued  to  hold  possession  in  his  character 
as  trustee.  But  as  to  all  the  rest  of  the  world,  except  the  parties  before 
mentioned,  the  case  is  the  same  as  if  the  will  had  been  valid.  All  others 
are  precluded  by  length  of  time  from  questioning  any  title  that  John  P. 
Kinard  may  choose  to  set  up.  They  are  estopped  by  their  acquiescence. 
To  the  children  of  John  Wicker,  who  are  declared  to  be  entitled  to  relief, 
the  representative  of  John  P.  Kinard  must  account,  as  for  the  estate  of 
Uriah  Wicker. 

It  is  ordered  and  decreed,  that  the  decree  of  the  Chancellor  be  modified 
according  to  the  views  herein  expressed. 

Johnson,  J.,  concurred. 


*  Sarah  Young  vs.  James  Naylor.  [*383 

The  defendant  Laving  married  in  Maryland,  was  divorced  a  mensa  et  thoro  and 
afterwards  (his  wife  there  living)  married  the  plaintiff  in  this  State,  and  took 
possession  of  her  property;  on  a  bill  filed  to  compel  an  account  and  surrender 
of  the  property,  the  marriage  here  was  declared  void,  and  the  defendant  ordered 
to  surrender  the  property,  and  account  for  the  rents  and  profits.  [*o8o] 

Laurens,  June,  1833.  This  bill  was  filed  for  an  account  and  surrender 
of  an  estate  which  came  into  the  defendant's  hands  by  virtue  of  a  mar- 
riage with  the  plaintifi',  which  she  alleges  was  void,  in  consequence  of  a 
pi'evious  marriage  of  the  defendant  in  Maryland  to  another,  who  is  still 
living.  To  this  the  defendant  answered,  that  previous  to  his  marriage 
with  the  plaiutiif,  the  Legislature  of  Maryland  had  passed  a  statute  dis- 
solving the  marriage  there,  and  divorcing  him  from  that  wife.  The 
statute  was  produced,  bearing  date  14th  February,  1820,  (prior  to  the 
marriage  here)  in  the  following  words:  "An  Act  for  the  benefit  of 
Margaret  W.  Naylor,  of  Charles  County."  "Be  it  enacted  by  the  Gene- 
ral Assembly  of  Maryland,  that  Margaret  W.  Naylor,  of  Charles  County, 
be,  and  she  is  hereby  divorced  from  bed  and  board  and  mutual  cohabita- 
tion of  her  husband,  James  Naylor,  of  George." 

De  Saussure,  Chancellor.  The  question  for  the  consideration  of  the 
Court  is  whether  the  statute  of  Maryland  was  a  divorce  a  vi'-nsa  ef  thoro, 
or  an  absolute  divorce  a  vIncuJo  matriiuonii?  If  it  was  a  divorce  a  vmciilo, 
then  the  defendant  was  entitled  to  all  the  rights  in  his  present  wife  s 
property,  given  by  our  laws  to  lawful  husbands.  If  it  was  a  divorce  a 
7nema  H  thoro  o\\\^,  then  James  Naylor  had  no  right  to  contract  inarriage 
with  Mrs.  Young  or  any  other  woman,  and  he  acquired  no  right  over 
her  property  by  the  mere  form  of  an  illegal  marriage. 

It  was  argued,  that  it  was  not  competent  for  this  Court  to  inter) lose 
its  authority  to  give  relief  for  three  reasons  :— 1st.  Because  it  involved 
the  exercise  of  ecclesiastical  jurisdiction,  which  does  not  belong  to  Chan- 


262  SOUTH    CAROLINA   EQUITY    REPORTS.  [*383 

eery.  2d.  That  if  there  be  any  wrong  done  to  the  complainant,  she  has 
a  remedy  at  haw.     3d.  That  it  decides  on  the  law  of  another  State. 

As  to  the  first,  the  Court  by  its  interposition  does  not  undertake  to 
assume  ecclesiastical  jurisdiction.  It  does  not  undertake  to  pronounce 
*oQ±i  judicially  that  the  parties  are  lawfully  *raarried  or  divorced ;  but 
-^  it  pronounces  the  etfect  of  such  a  state  of  things.  It  decides 
merely  incidentally  and  collaterally,  as  every  Court  is  often  bound  to  do. 
In  the  case  of  a  criminal  prosecution  against  a  man,  a  woman  may  be 
called  upon  as  a  witness.  She  might  be  objected  to  as  being  the  wife 
of  the  prisoner  on  trial,  and  incompetent  to  be  a  witness.  The  marriage 
might  be  denied.  The  course  of  the  trial  could  not  be  stopped,  and  the 
criminal  Judge  must  hear  the  evidence  to  ascertain  whether  she  is  the 
wife  of  the  prisoner,  and  decide  on  it  too — else  he  could  not  decide  on 
her  competency  or  incompetency.  And  the  same  difficulty  would  occur 
in  all  Courts  of  justice,  if  they  could  not  decide  on  questions  not  origi- 
nally within  their  jurisdiction. 

On  the  second  ground,  that  the  complainant  has  a  remedy  at  law,  this 
does  not  appear  to  me  to  prevent  the  complainant  asking  relief  of  this 
Court,  even  if  the  fact  were  as  alleged.  One  of  the  common  grounds 
of  jurisdiction  in  this  Court,  is  to  prevent  multiplicity  of  suits.  Now,  in 
the  case  before  us,  the  husband  might  disperse  the  property  into  various 
hands.  There  are  lands,  slaves  and  other  property  in  question.  A 
multitude  of  suits  would  be  necessary  to  secure  and  protect  the  complain- 
ant's rights.     It  appears  to  me  that  she  comes  here  properly  for  relief. 

The  third  ground  of  objection  is,  that  this  Court  cannot  decide  on  the 
construction  and  effect  of  the  statute  of  Maryland,  divorcing  James 
Naylor  from  his  wife.  This  objection  is  founded  in  error.  It  is  the 
practice  of  all  Courts  of  Justice,  in  all  countries,  to  decide  questions  in 
cases  brought  before  them,  arising  under  the  laws  of  other  countries. — 
The  enquiry  is  made,  what  is  the  law  of  that  country  in  which  the  con- 
tract was  made  or  was  to  be  executed  and  when  that  is  once  ascertained, 
the  Court  gives  it  application  to  the  case  under  consideration.  Thus 
the  English  Courts  have  decided  in  the  famous  case  called  the  Dalrymple 
case,  what  constituted  a  marriage  in  Scotland.  In  that  case,  which  has 
been  followed  by  others.  Sir  Wm.  Scott  decided  that  the  facts  proved, 
constituted  a  lawful  marriage,  (against  the  opinion  of  some  of  the  most 
;^ooc-|  learned  of  the  ^Scottish  bar)  and  consequently  a  second  marriage 
-'  contracted  in  England  by  one  of  the  parties  was  null  and  void. 
This  decision,  which  has  never  been  questioned,  is  direct  as  to  the  right 
of  this  Court  to  exercise  jurisdiction,  and  to  decide  on  the  question  of  the 
divorce  under  the  Maryland  statute. 

We  come  then  to  the  consideration  of  the  question,  what  was  the 
intention  and  effect  of  the  statute  of  Maryland. — Was  it  meant  to  be  a 
divorce  a  mensa  etthoro,  or  a  vinculo  matrimonii  ? 

The  statute  bears  date  on  the  14th  February,  1820,  and  is  entitled 
"  An  Act  for  the  benefit  of  Margaret  W.  Naylor,  of  Charles  County," 
and  is  in  these  words — "Be  it  enacted  by  the  General  Assembly  of 
Maryland,  that  Margaret  W.  Naylor  of  Charles  County,  be,  and  she  is 
hereby  divorced  from  bed  and  board,  and  mutual  cohabitation  with  her 
husband,  James  Naylor  of  Georgia."  Now  this  statute  does  not  divorce 
a  vinculo  matrimonii. — It  is  from  bed  and  board,  which  is  a  mensa  et 


*385]  COLUMBIA,    DECEMBER,    1833.  2u3 

thoro — which,  it  is  well  niiderstood,  does  not  amount  to  such  an  alisulute 
divorce,  as  entitles  the  parties  to  marry  third  persons.  The  addition  uf 
the  words  "  from  mutual  cohabitation,"  does  not  enlarge  the  nature  of 
the  divorce.  It  is  a  mere  repetition  of  the  idea  of  separation  from  bed 
and  board,  which  of  itself  would  have  amounted  to  a  cessation  of  mutual 
cohabitation. 

A  volume  of  the  statutes  of  Maryland  was  placed  in  my  hands,  in 
which  I  have  examined  various  Acts  from  1820  to  1832,  divorcing  sundry 
person  therein  named.  By  a  careful  reference  to  these  acts,  it  ai)pears 
that  wherever  the  divorce  from  bed  and  board  and  mutual  cohabitation 
is  enacted,  it  does  not  appear  to  be  considered  an  absolute  and  final 
divorce  from  the  binding  efficacy  of  the  original  marriage  contract. 

Wherever  additional  provisions  were  considered  necessary  to  prevent 
the  control  of  the  acts  of  the  husband,  or  for  other  purposes,  they  are 
expressly  inserted  in  the  statute.  In  a  few  cases  where  there  are  divorces 
from  bed  and  board  and  mutual  cohabitation,  a  special  proviso  is  made 
that  these  should  not  amount  to  a  power  to  the  parties  *to  con-  r^^oog 
tract  marriage  again,  lest  those  privileges  should  be  construed  '- 
into  an  absolute  divorce.  And  in  cases  where  the  statute  means  to 
divorce  the  parties  absolutely,  it  enacts  the  marriages  to  be  null  and  void, 
and  the  parties  are  declared  to  be  divorced  a  vinculo  matrimonii. 

It  appears  to  me  then  to  be  quite  clear,  that  the  act  of  divorce  between 
James  Naylor  and  Margaret  W.  Naylor,  was  not  intended  by  the  law- 
giver to  amount  to  a  divorce  a  vinculo  matrimonii ;  but  was  simply,  as 
it  expresses  itself  to  be  a  divorce  from  bed  and  board  and  from  mutual 
cohabitation.  Now  this  does  not  authorize  either  of  the  parties  to  con- 
tract another  marriage. — Consequently  the  marriage  contracted  by  James 
Naylor  with  Sarah  Young,  was  null  and  void,  and  he  acquired  no  marital 
rights  by  virtue  thereof. 

It  is  therefore  ordered  and  decreed,  that  James  Naylor  shall  not 
exercise  any  control  over  the  property  of  the  said  Sarah  Young  ;  but  shall 
forthwith  deliver  up  the  whole  thereof  to  her,  subject  to  her  own  acts. 
And  the  said  property  is  hereby  declared  and  decreed  to  be  free  from  the 
demands,  suits,  judgments  and  executions  of  the  creditors  of  the  said 
James  Naylor,  or  of  any  other  person  or  persons,  other  than  the  said 
Sarah  Young. 

It  is  further  ordered  and  decreed,  that  it  be  referred  to  the  ^Com- 
missioner to  examine  and  report,  what  were  the  debts  of  Sarah  Young, 
before  the  alleged  marriage  with  James  Naylor — also  what  were  the 
debts  justly  and  properly  chargeable  to  her  after  said  marriage  ceremony. 
— And  that  in  making  up  said  account,  the  Commissioner  do  allow  to 
James  Naylor,  all  just  and  equitable  demands  against  the  said  estate  for 
proper  improvements  or  reasonable  expenditures. 

From  this  decree  the  defendant  appealed,  on  the  grounds  taken  below. 

Williams  and  Irhy,  for  the  appellant. 
Young,  contra. 

^Per  Curiam,     We  concur  with  the  Chancellor  in  his  views  r*3gY 
of  the  questions  on  which  the  defendant  has  appealed  ;  his  motion 
is  therefore  dismissed. 


264  SOUTH    CAROLINA   EQUITY   REPORTS.  [*387 


Titus  G.  Farr,  and  others,  v.  Wm.  B    Farr,  Executor. 

This  Court  views  contracts  between  trustees  and  their  cestui  que  trusts  in  relation  to 

the  trust  property  with  great  suspicion.  [*:^90] 
A  party  coming  into  Equity  for  relief  against  a  fraudulent  deed,  must  come  within 

four  years  after  the  fraud  was  discovered  («)  [*391] 
And  the  same  lapse  of  time  (four  years)  will  bar  relief  against  fraud  in  a  deed  for 

land,  as  well  as  for  personalty.  [*;59:2] 

Heard  before  Chancellor  Johnston,  at  Union,  June,  1833,  The  bill 
states  that  Col.  Wm.  Farr,  late  of  Union  District,  deceased,  by  his  last 
will  and  testament  executed  in  1794,  charged  his  estate  with  the  support 
of  his  wife  during  her  life  or  widowhood,  and  also  with  the  maintenance 
and  education  of  his  children,  and  after  the  death  or  marriage  of  his  wife, 
he  directed  his  real  and  personal  estate  to  be  divided  amongst  liis 
children,  and  appointed  his  son,  the  defendant  Wm.  B.  Farr,  and  others, 
his  executors.  The  defendant  qualified,  became  principal  acting  execu- 
tor, took  possession  of  the  estate  and  made  some  sales  thereof,  and 
worked  the  plantation  and  slaves  for  many  years,  taking  the  entire 
control  and  management  of  the  estate,  and  acting  as  the  guardian  of  his 
brothers,  the  plaintiff  Titus  Gr.  Farr,  and  James  Farr,  who  were  then 
minors  and  lived  with  him.  That  during  this  time  the  defendant 
frequently  represented  the  estate  as  insolvent,  and  that  the  property  in 
his  possession  was  his  own  ;  which  representations  are  alleged  to  be 
false,  and  made  to  deceive  and  defraud  the  parties  interested.  That  the 
devisees  being  indigent  and  necessitous  and  desirous  of  enjoying  their 
share  of  the  estate,  in  order  to  effect  this,  on  the  coming  of  age  of  the 
youngest  child,  procured  the  consent  of  their  mother  to  release  her 
interest,  for  an  adequate  provision  in  her  behalf  for  life  ;  and  proposed 
that  partition  should  then  be  made  according  to  the  will.  That  the 
defendant  objected  and  positively  refused  to  enter  into  any  arrangement, 
unless  they  would  allow  him  a  certain  quantity  of  land,  and  certain 
*"R81  iisgroes,  horses  *and  stock,  amounting  in  value  to  about  $30,000 
-I  beyond  the  share  he  was  entitled  to  under  the  will,  to  remunerate 
him,  as  he  said,  for  his  trouble  and  expense  in  managing  the  estate, 
raising  and  educating  the  children,  and  for  advances  made  for  the  benefit 
of  the  estate.  That  having  confidence  in  his  representations  and  wishing 
to  avoid  any  litigation,  the  other  devisees  consented,  and  accordingly  a 
deed  of  partition  and  settlement  was  executed  on  14th  March,  1819, 
which  allowed  to  the  defendant  the  land  and  negroes  and  stock  as  agreed 
on,  and  to  the  other  devisees  their  shares,  which  afterwards  went  into 
their  possession  and  have  been  held  by  them  ever  since.  This  deed  the 
bill  charges  to  have  been  obtained  by  fraud,  and  prays  that  it  may  be 
set  aside  and  the  defendant  held  to  account.  It  also  alleges  that  the 
plaintiff,  Titus  Gr.  Farr,  was  kept  in  ignorance  of  the  true  situation  of 
the  estate  and  of  his  rights  therein,  and  that  the  deed  was  not  valid,  until 
within  four  years  before  the  filing  of  this  bill.  James  Farr  died  on  22d 
May,  1823,   leaving  children  who  are  plaintiffs  in  this  bill,  and  most  of 

(a)  See  Eigleberger  v.  Kibler,  ante,  121;  Prescott  v.  Hubbell,  ante,  210;  Riddle- 
hoover  V.  Kiuard,  ante,  37G.  K. 


*388]  COLUMBIA,   DECEMBER,    1833.  265 

them  still  under  the  age  of  twenty-one;  and  Titus  G.  Fan-  lias  adminis- 
tered on  his  estate.  The  bill  was  filed  in  183 — ,  after  the  period  f)f  the 
statute  of  limitations  had  run  out  from  1819. 

The  defendant  in  his  answer  avers,  that  the  parties  were  fully  con- 
versant of  their  rights,  and  voluntarily  executed  the  deed  of  l8lil  as  a 
final  settlement  and  partition  of  the  estate ;  and  that  under  the  ciroiim- 
stances  it  was  just  and  equitable — the  property  retained  by  himself  being 
no  more  than  he  was  justly  entitled  to  ;  and  he  set  up  this  deed  in  bar  to 
an  account,  and  pleaded  the  statute  of  limitations. 

The  Chancellor  dismissed  the  bill  and  the  plaintiffs  appealed  on  the 
following  grounds  : 

1.  That  the  Court  should  have  declared  the  deed  of  partition  and 
settlement  fraudulent  and  void,  under  the  circumstances  attending  its 
execution. 

»2,  That  lapse  of  time  or  the  statute  of  limitations  should  not  bar  the 
relief  sought,  inasmuch  as  the  plaintiffs  were  ignorant  of  their  rights  and 
of  the  defendant's  fraud,  until  within  four  years  before  the  bill  was  filed. 

3.   That  the  minority  of  the  heirs  of  James  Farr  who  are  *par-  r^ooQ 
ties  to  the  bill  as  plaintiffs  will  prevent  the  bar  of  the  statute  of  L 
limitations  or  lapse  of  time,  as  to  the  rights  of  the  other  plaintiffs  in  the 
real  estate — or  at  all  events,  will  save  their  own  rights 

« 

Herndon,  for  the  appellants,  argued  that  the  deed  of  partition  and 
settlement  should  be  declared  void  and  set  aside,  on  the  grounds,  that 
the  defendant  had  kept  the  parties  in  ignorance  of  the  true  situation  of 
the  estate — had  availed  himself  of  their  necessities  and  exacted  from  them 
one  half  of  the  corpus  of  the  estate  besides  the  profits,  for  doing  that 
which  he  was  bound  to  do.  That  by  his  false  representations,  that  he 
was  the  rightful  owner  of  the  property  in  his  possession,  and  that  the 
estate  was  insolvent,  they  were  induced  to  avoid  litigation,  to  consent  to 
his  terms — that  this  might  be  regarded  as  a  purchase  from  expectant 
heirs,  which  was  always  regarded  with  jealously  and  set  aside  especially 
when,  as  in  this  case,  there  was  gross  inadequacy  of  price.  And  that  a 
deed  thus  obtained  should  be  set  aside,  as  well  on  the  grounds  of  public 
policy  as  for  the  fraudulent  and  unconscientious  means  employed  to  obtain 
it.     Butler  v.  Haskell,  4  Eq.  Rep.  687  ;   1  Maddock,  96  ;  1  M'C.  383  ; 

1  Mad.  112 ;  2  Yes.  Sen.  547  ;  9  Ves.  292. As  to  the  statute  of 

limitations  or  lapse  of  time,  he  insisted  that  time  could  only  be  a  bar  from 
a  discovery  of  the  fraud,  and  a  knowledge  by  the  plaintiffs  of  their  rights. 
That  where  the  ground  of  relief  is,  that  the  party  seeking  it  was  ignorant 
of  his  rights,  all  that  is  required,  is  for  him  to  charge  the  fact,  and  the 
defendant  must  show  that  he  was  not.  James  Farr's  heirs-at-law  being 
infants,  will  save  the  rights  of  all  the  plaintiffs,  Lahiffe  v.  Smart,  1  Bailey, 
102.  By  analogy  to  the  statute  of  limitations,  if  time  is  to  be  a  bar  in 
this  case,  five  years  will  be  the  time  to  run,  in  order  to  bar  the  i)laintiirs 
right  to  the  real  estate ;  that  being  the  period  of  the  statute  at  that  time  ; 
James  Farr  died  before  five  years  had  elapsed  from  1819, — and  the 
minority  of  his  children,  if  it  will  not  save  the  rights  of  the  other  i)lain- 
tiffs,  will  at  least  protect  their  own.     Starke  v.  Starke,  Law  Journal. 

Thomson,  contra,  contended  that  the  deed  of  1819  was  executed  by 


266  SOUTH    CAROLINA   EQUITY    REPORTS.  [*389 


*^qm  ^^^  ^^®  parties  under  a  perfect  knowledge  of  *their  rights.     The 
-I  was  no  evidence  that  they  were  ignorant  of  them,  nor  any  circui 


lere 
ira- 
stance  to  warrant  that  conclusion.  General  allegations  of  fraud  will  not 
do  ;  it  must  be  specially  set  out,  2  Saund.  PI.  &  Ev.  116,  643  ;  Barn.  & 
Ores.  647  ;  1  Chitty,  339  ;  and  the  plaintiffs  have  failed,  either  to  specify 
the  fraud  in  the  bill,  or  to  sustain  it  by  evidence.  As  to  lapse  of  time, 
he  contended  that  four  years  was  sufficient  to  bar  the  relief  sought,  which 
was  not  a  recovery  of  the  land,  but  to  set  aside  a  deed  as  fraudulent ;  and 
four  years  had  elapsed  in  the  lifetime  of  James  Farr  after  the  deed  had 
been  executed;  and  he  referred  to  14  John.  4UT ;  1  Pothier,  36;  Newl. 
452  ;  and  the  Louisiana  Code. 

Herndon,  in  reply,  cited  Mad.  Rep.  133;  1  M'C.  Ch.  389;  Mad. 
Ch.  389. 

Harper,  J.  The  point  for  consideration  is  the  settlement  by  the  deed 
of  the  14th  March,  1819.  If  the  application  had  been  made  recently 
after  its  execution,  I  should  greatly  doubt  whether  that  settlement  could 
be  allowed  to  stand.  By  it,  he  apparently  secures  a  very  considerable 
advantage.  The  relative  situation  of  the  parties  is  to  be  considered. 
He  was  the  executor  in  possession  of  the  estate,  and  had  stood  in  the 
relation  of  actual  guardian  to  the  parties.  They  were  just  then,  by  the 
consent  of  their  mother,  entitled  to  claim  a  distribution  of  the  estate,  and 
naturally  anxious  to  get  into  possession.  The  defendant  stood  in  a 
position  of  advantage  in  treating  with  them.  The  property  allotted  to 
defendant  over  and  above  his  equal  distributive  share,  is  said  to  be  in 
consideration  of  his  services  in  saving  and  preserving  the  estate.  This 
must  be  regarded  as  a  gratuity,  and  such  gratuities,  under  such  circum- 
stances, the  Court  always  looks  upon  with  the  greatest  suspicion.  In 
such  case,  as  is  said  in  Hylton  v.  Hylton,  2  Yes.  Sen.  547,  the  party  is 
supposed  to  say,  'I  will  not  deliver  up  the  estate,  unless  you  grant  me 
this.'  Defendant  had  plausible  grounds  for  involving  them  in  a  pro- 
tracted litigation  ;  and  indeed  he  himself  states  in  his  answer  that  he 
would  not  have  consented  to  what  he  terms  a  premature  division,  unless 
*391"1  ^^  ^^^  apparently  gained  some  *advantage.  It  is  true  that  the 
-■  settlement  was  proposed  to  the  defendant  by  the  other  parties. 
But  then  it  is  to  be  recollected  that  he  had  previously  attempted  to  alarm 
their  fears  by  telling  them  that  the  property  was  his  ;  that  their  father's 
estate  was  insolvent,  and  referring  them  to  the  Ordinary's  office  for  proof 
of  that  fact.  I  do  not  mean  that  he  deceived  them.  I  believe  they  well 
knew,  or  had  good  reason  to  believe,  that  he  could  not  hold  the  property 
as  his,  and  that  they  were  entitled  to  distribution.  But  they  might  justly 
be  alarmed  at  the  prospect  of  being  held  out  of  possession  for  a  long 
time.  He  operated  not  upon  their  ignorance,  but  upon  their  will.  But 
it  is  unnecessary  to  investigate  minutely  this  part  of  the  cause,  as  I  am 
satisfied  complainants  are  barred  of  their  claim  to  relief  by  the  lapse  of 
time,  in  analogy  to  the  statute  of  limitations. 

The  complainants  come  to  be  relieved  against  a  fraud.  They  come  to 
set  aside  a  deed  w4nch  is  a  bar  to  an  account  to  which  they  would  be 
otherwise  entitled.  I  am  not  aware  that  there  is  any  doubt  about  the 
rule  that  a  party  coming  to  be  relieved  against  a  fraud,  must  come  within 


*391]  COLUMBIA,    DECEMBER,    1833.  2GT 

four  years  (in  England  six  years)  from  the  time  the  fraud  is  discovered. 
In  Wymondsell  v.  The  East  India  Company,  3  Pr.  Wras.  143,  it  is  ruled, 
that  the  bill  must  allege  that  the  fraud  was  discovered  within  six  years 
before  exhibiting  it.  And  the  fact  must  correspond  with  the  allegation. 
"  If  the  fraud  was  known  and  discovered  six  years  before  exhibiting  the 
bill,  this,  though  a  fraud,  would  be  barred  by  the  statute  of  limitations. 
The  subject  is  fully  considered  by  Lord  Redesdale  in  Hoveden  v. 
Annesley,  2  Sch.  &  Lef.  607.  The  bar  of  six  years  is  adopted  in 
analogy  to  the  legal  bar  to  an  action  of  account.  In  the  case  of  Starke 
V.  Starke,. Law  Jour.  503,  decided  by  this  Court,  it  was  held  that  while  a 
trust  continues,  the  statute  cannot  affect  it;  "but  if  the  trustee  does  an  act 
which  he  intends,  and  which  is  understood  by  his  cestui  que  trust,  to  be 
a  discharge  of  his  trust,  then  the  statute^will  from  that  time  commence  to 
run."  To  the  same  effect  was  the  case  of  Moore  v.  Porcher,((f)  decided 
in  Charleston  ;  with  the  explanation  that  if  there  be  fraud  in  the  act  by 
which  the  trust  purports*  to  be  finally  executed,  the  statute  will  r^jcqqo 
not  begin  to  run  till  the  fraud  is  discovered.  L 

But  what  fraud  was  there  in  this  transaction,  which  the  complainants 
have  discovered  since  the  settlement  ?  I  cannot  discover  a  vestige  of 
any.  If  there  was  any  fraud,  it  was  not,  as  I  have  before  said,  in  im- 
posing on  their  ignorance,  but  in  alarming  their  fears  and  taking  advan-. 
tage  of  their  situation  and  natural  impatience  to  have  possession  of  their 
property.  They  certainly  knew  of  the  purchase  by  Richard  Farr,  at  the 
executor's  sale,  and  seemed  to  be  satisfied  that  the  defendant  could  not 
claim  under  that.  They  knew  of  what  property  the  estate  consisted,  and 
how  it  had  been  managed.  They  knew  that  the  defendant  had  not  kept, 
or  at  all  events,  had  not  returned  any  accounts.  They  knew  that  if  he 
purchased  property  with  the  proceeds  of  the  estate,  a  trust  resulted  for 
those  entitled  to  the  estate.  They  had  able  legal  advice.  I  cannot  lay 
my  finger  on  the  minutest  fact  w'hich  they  know  now,  that  they  did  not 
know  then  ;  and  as  said  by  the  defendant's  counsel,  I  am  satisfied  that 
they  were  at  least  as  well  informed  of  their  rights  then,  as  they  are  now. 
If  they  were  alarmed  into  offering  such  terms  as  the  defendant  w-as  willing 
to  accept,  they  had  four  years  after  being  put  in  possession  of  part  of 
their  property,  to  institute  further  proceedings.  Having  neglected  to 
do  so,  it  is  time  there  should  be  an  end  to  litigation. 

It  was  argued  that  the  statute  could  not  apply  to  the  heirs  of  James 
Farr,  who  have  been  minors,  so  far  as  respects  the  land  ;  and  that  their 
minority  will  save  the  rights  of  the  rest.  Five  years  was  at  that  time 
required  to  bar  the  right  to  land.  There  is  nothing  in  this.  This  is  not 
a  suit  to  recover  land — though  the  recovery  of  land  might  be  an  inci- 
dental consequence  of  it.  It  is  to  be  relieved  against  a  fraud.  It  is  to 
set  aside  a  deed ;  which  deed,  while  of  force,  is  a  bar  to  the  account 
which  they  claim.  The  defendant  does  not  claim  the  land  under  the 
statute,  but  under  the  deed.  If  the  deed  were  out  of  the  way,  the  ^de- 
fendant, I  suppose,  could  not  hold  the  land  by  the  statute.  James  Farr 
lived  four  years  after  the  execution  of  *the  deed.  It  is  that  deed  r*393 
which  is  sought  to  be  relieved  against,  and  from  the  execution  of 
that,  the  statute  began  to  run. 

The  motion  is  dismissed  and  the  decree  afiirmed. 

Johnson  and  O'Neall,  Js.,  concurred. 
(a)  Not  reported. 


268  SOUTH   CAROLINA    EQUITY    REPORTS.  [*393 


David  Boozer  v.  Mary  E.  Wallace,  John  P.  Boozer  and  Francis 

Boozer. 

An  administrator  in  possession  of  his  intestate's  estate  died,  and  tlie  funds  fell  into 
the  hands  of  his  administrator.  The  widow  was  then  appointed  administratrix, 
de  bonis  non,  and  guardian  of  her  children,  who  were  entitled  to  distributive 
shares  of  the  estate,  and  afterwards  married  the  plaintiff,  and  together  with  her 
husband  received  the  estate  from  the  administrator  of  the  first  adniinistrator: — 
Held,  that  in  respect  to  the  fund  thus  received,  the  plaintiff  was  not  clothed  with 
a  representative  character  that  he  received  it  from  the  administrator  in  the 
character  of  husband,  and  consequently  that  the  marital  rights  attached.  [*395] 

Newberry,  July,  1833,  before  Chancellor  Johnston.  Bill  for  partition, 
&c.  It  had  been  referred  to  the  commissioner,  "to  ascertain  and  report 
upon  the  facts  alleged  in  the  bill  of  the  plaintiff,  particularly  as  to  the 
matters  of  account  relative  to  the  estates  of  Howell  Wallace,  Hugh  Wal- 
lace and  William  H.  Wallace,  and  what  amount  thereof  the  plaintiff 
reduced  into  possession  during  coverture,  and  what  are  the  respective 
interests  of  David  Boozer  and  the  defendants,  Mary  E.  Wallace,  John  P. 
Boozer  and  Francis  Boozer ;"  and  he  submitted  the  following  report : — 

"Howell  Wallace  died  intestate  in  1822,  leaving  a  widow,  Elizabeth, 
and  two  children,  William  H.  Wallace  and  Mary  E.  Wallace  his  only 
heirs.  Hugh  Wallace  took  out  letters  of  administration  on  his  estate, 
and  also  died  intestate  in  1825.  Shortly  after  the  death  of  Hugh  Wal- 
lace, William  H.  Wallace  also  died  intestate,  leaving  his  mother,  Eliza- 
beth, and  sister,  MaryE.  Wallace,  his  only  representatives  him  surviving. 
After  the  death  of  the  said  Hugh  Wallace,  the  widow  of  How^ell  Wallace 
took  out  administration  de  bonis  non  on  Howell  Wallace's  estate,  and 
afterwards  received  of  John  Jamison,  (who  is  the  administrator  of  Hugh 
*S94l  Wallace,  who  was  the  first  administrator*  of  Howell  Wallace)  a 
-'  part  of  the  funds  of  the  estate  of  the  said  Howell  Wallace,  and  in 
182Y  intermarried  with  the  plaintiff,  David  Boozer,  who  together  with 
his  wife,  in  some  instances,  and  at  other  times  alone  received  of  the  said 
John  Jamison  the  residue  of  the  funds  of  the  estate  of  the  said  Howell 
Wallace.  During  the  coverture,  all  of  the  funds  of  the  estate  of  Howell 
Wallace  were  in  the  hands  of  the  said  David  Boozer,  as  administrator  in 
right  of  his  wife.  Mrs.  Boozer  died  in  the  fall  of  1831, — no  settlement 
nor  actual  partition  of  the  estate  of  Howell  Wallace,  in  the  hands  of  the 
plaintiff,  having  taken  place  before  her  death.  She  was  survived  by  the 
plaintiff  and  defendants.  It  may  not  be  improper  to  remark,  that  Mrs. 
Boozer  had  also  been  appointed  the  guardian  of  the  said  William  H. 
Wallace  and  Mary  E.  Wallace — that  she  never  received  any  of  the  funds 
of  the  said  William  H,  Wallace,  he  having  died  during  the  administration 
of  Hugh  Wallace  on  the  estate  of  his  father ;  but  that  she,  before  her 
intermarriage,  and  also  during  the  coverture,  together  with  her  husband, 
continued  to  act  as  the  guardian  of  Mary  E.  Wallace,  until  her  death, 
and  the  said  David  continues  to  act. 

"These  are  all  the  facts  material  to  a  correct  understanding  of  the 
case,  and  on  them  the  following  questions  arise  : 

"  1.  Was  there  such  a  reduction  into  possession  of  the  share  of  Mrs. 
Boozer  in  the  estate  of  Howell  Wallace  by  the  plaintiff  during  the  cover- 
ture, as  vested  the  whole  of  her  one-third  in  him. 


r*395 


*394]  COLUMBIA,   DECEMBER,   1833.  269 

"  2.  Was  there  such  reduction  into  possession  of  Mrs.  Boozer's  interest 
in  the  share  of  William  H.  Wallace  of  his  father's  estate,  as  vested  such 
share  in  the  plaintiff,  in  exclusion  of  the  defendants. 

"  3.  Was  there  any  reduction  into  possession  by  the  plaiutiiT  of  the 
interest  of  William  H.  AVallace  in  the  estate  of  Hugh  Wallace. 

"  These  are  questions  of  great  difficulty,  and  the  Commissioner  has 
neither  time  nor  inclination  to  argue  them.  On  reflection,  however,  I 
have  arrived  at  the  conclusion  that  the  marital  rights  of  the  husband 
attached  on  the  interest  *of  his  wife  in  the  estate  of  Howell  Wal- 
lace, and  that  he  is  entitled  to  it  in  exclusion  of  the  defendants. 
As  to  the  interest  of  William  H.  Wallace,  the  Commissioner  thinks  the 
plaintiff  had  no  right  to  the  possession  of  the  fund,  and  was  therefore 
holding  it  for  those  entitled;  and  that  he  is  only  entitled  to  such  a  share 
of  it  as  he  may  claim  by  representation  through  his  wife.  The  remaining 
question  is  on  the  same  footing."  The  report  concludes  by  stating  an 
account  between  the  parties,  according  to  the  principles  here  laid  down. 

The  Chancellor  confirmed  the  report,  and  the  defendants  appealed  on 
the  ground  : 

That  there  had  been  no  partition  of  the  estate  of  Howell  Wallace,  and 
no  such  reduction  into  possession  by  the  complainant  as  that  the  marital 
rights  would  attach  thereon,  and  therefore  the  Commissioner  and  Chan- 
cellor erred  in  allowing  the  complainant  the  whole  of  his  wife's  interest 
in  the  estate  of  Howell  Wallace. 

Dunlap  and  Sumvier,  for  the  appellants. 
J.  J.  Caldwell,  contra. 

Johnson,  .J.  The  choses  in  action  of  the  wife  which  are  reduced  into 
possession  by  the  husband  during  the  coverture,  belong  to  him.  About 
this  there  is  no  dispute;  difficulties  do,  however,  sometimes  arise  as  to 
what  does  or  does  not  constitute  a  reduction  into  possession.  Here  the 
husband,  the  complainant,  had  during  the  coverture  the  actual  possession 
of  the  fund,  and  in  such  cases  the  question  whether  it  does  not  vest  in  him 
ju7^e  mariii,  depends  on  the  circumstance  whether  he  received  it  in  his  char- 
acter as  husband,  or  in  the  representative  character  as  trustee  or  executor. 
In  the  first  case  it  vests  in  the  husband,  in  the  latter  case  it  does  not.  The 
cases  of  Marsh  and  wife  v.  Ardis  and  others,  decided  at  December  Term, 
1831,  and  Spann  v.  Jennings,  decided  at  May  Term,  1833,  are  examples 
falling  within  the  first  class  of  cases.  In  both,  the  husband,  without 
administration,  possessed  himself  of  personal  property  which  descended  to 
the  wife  during  coverture,  and  it  was  held  to  vest  in  the  husband,  because 
the  wife  was  sole  heiress  of  the  estate,  which  was  unincumbered  and  free 
from  debt.  The  case  of  Baker  v.  Hall,  12  Ves.  497,  is  *an  r^^c^^ 
example  of  cases  falling  within  the  latter  class.  There,  a  trustee  •- 
and  executor  married  one  of  the  residuary  legatees  named  in  the  will,  and 
distribution  of  the  residuary  estate  not  having  been  made,  it  was  held  that 
the  marital  rights  did  not  attach — so  where  East  India  stock  belonging 
to  the  v,-ife  had  been  transferred  to  the  husband  and  anotlier  as  trustees, 
it  was  held  that  it  survived  to  the  wife. 

The  complainant  with  respect  to  this  fund  was  not  clothed  with  any 
representative  character.     He  received  it  from  the  administrator  in  the 


270  SOUTH   CAROLINA   EQUITY   REPORTS.  [*396 

character  of  husband.  There  was  nothing  else  which  entitled  him  to  it, 
and  it  must  be  set  down  to  that  account.  The  circumstance  that  it  was 
comingled  with  the  money  due  to  his  wards  does  not  vary  the  question, 
that  only  made  him  their  debtor  to  that  amount. 

The  motion  to  reverse  the  decree  of  the  Circuit  Court  is  therefore  dis- 
missed, and  it  is  ordered  and  decreed  that  the  same  be  and  it  is  hereby 
affirmed,  (a) 

O'Neall,  J.,  concurred. 


^007-1  *RoBERT  S.  Burgess  and  Wm.  H.  Burgess,  a  minor,  by  guar- 


^397] 


dian,  v.  William  H.  Heape. 


Where  the  wife  before  marriage  was  a  joint  tenant  of  slaves,  which  went  into  the 
possession  of  her  co-tenant  in  her  lifetime: — Held,  that  this  was  such  a  fiossession 
by  her,  as  that  the  marriage  rights  of  her  husband  would  attach.  [*404] 

Barnwell,  February,  1833.  This  bill  was  filed  for  an  account  and 
partition  of  certain  slaves  lately  recovered  by  a  decree  of  this  Court,  by 
the  defendant  and  his  sister,  Eliza  Burgess,  late  the  wife  of  one  plaintiff 
and  the  mother  of  the  other,  of  which  slaves  the  plaintiffs  claim  one-half. 
It  appeared,  that  pending  the  suit  in  which  the  recovery  was  had,  Eliza 
Heape  married  Robert  S.  Burgess  ;  and  after  a  decree  in  their  favor  and 
during  the  lifetime  of  Mrs.  Burgess,  the  defendant  took  possession  of  the 
slaves  and  removed  with  them  out  of  the  State,  and  since  refuses  parti- 
tion. Being  accidentally  found  in  this  State,  this  bill  was  filed,  and  a 
ne  exeat  issued  against  him.  Mrs.  Burgess  died  leaving  the  plaintiffs  her 
only  representatives.  No  administration  has  been  taken  on  her  estate. 
The  plaintiff,  Robert  S.  Burgess,  in  the  bill,  claims  in  the  first  place  for 
himself,  the  whole  of  his  wife's  moiety  of  the  slaves,  by  virtue  of  his 
marital  rights,  but  should  the  Court  adjudge  that  the  same  has  not  vested 
in  him,  then  he  claims  an  account  and  partition  for  himself,  and  also  in 
behalf  of  his  son  as  his  guardian  ad  litem,  and  prays  that  his  (son's)  pro- 
portion may  be  delivered  to  him  on  his  giving  the  necessary  security. 

(a)  The  judgment  of  the  Court  in  this  case,  is  predicted  on  the  supposition  that 
the  whole  estate  of  Howell  AVallace  had  been  administered  by  Hugh  Wallace,  the 
first  administrator,  and  went  into  the  hands  of  Jamison,  his  administrator — that  no 
part  of  the  estate  was  actually  received  by  the  plaintiff  or  his  wife,  in  right  of  their 
administration;  and  consequently  that  all  of  this  estate  received  by  them  was  in  the 
characters  of  distributee  and  guardian.— The  report  of  the  Commissioner  on  this 
point  is  rather  uncertain,  for  it  states  that  the  widow,  before  her  marriage,  received 
a  part  of  the  estate,  and  after  that  the  plaintiff,  "with  his  wife,  in  some  instances, 
and  in  others  alone,  received  of  the  said  John  Jamison,  the  residue;"  and  that 
"during  the  coverture,  all  the  funds  of  the  estate  of  the  said  Howell  Wallace,  were 
in  the  hands  of  the  said  David  Boozer,  as  adminhtrator  in  right  of  his  wife."  It  is 
presumed,  however,  that  the  fact  was,  as  supposed  by  the  Court,  or  otherwise  a 
different  decision  must  have  been  made,  as  regards  any  part  of  the  estate  received 
by  Mrs.  Boozer,  or  her  husband  in  her  right  as  administratrix  de  bonis  non;  for  on 
that  part,  according  to  the  doctrine  of  Spann  r.  Stewart,  ante,  332,  the  marital  rights 
would  not  have  attached.  R, 


*QQT 


\ 


397]  COLUMBIA,    DECEMBER,    1833.  271 

De  Saussure,  Chancellor.  The  complainant  and  his  son,  W.  II. 
Burgess,  a  minor,  suing  by  guardian,  are  entitled,  by  virtue  of  a  decree 
of  the  Court  of  Appeals,  to  one-half  of  certain  slaves  which  have  come, 
by  virtue  of  that  decree,  into  the  possession  of  the  defendant,  W.  H. 
lieape.  The  latter  has  removed  the  slaves  out  of  the  State,  and  beyond 
the  jurisdiction  of  the  Court ;  and  he  has  also  removed  himself,  and  is 
found  accidentally  here,  and  made  responsible  only  by  the  process  of 
ne  exeat.  No  objection  is  made  to  the  right  of  the  complainants  to  the 
slaves,  and  an  account  for  the  hire  and  labor  of  the  slaves.  But  it  is 
objected,  that  as  th-e  complainants  claim  in  right  of  Mrs.  Burgess,  late 
the  wife  of  one,  and  the  mother  of  the  other  complainant,  they  are  bound 
to  administer  on  her  estate  before  the  Court  will  *decree  in  their  rMcono 
favor.  The  evidence  proves  that  the  complainant,  the  widower  of  ■- 
Mrs.  Burgess,  is  so  extremely  poor  that  he  has  not  been  able  to  give  the 
security  required  bylaw,  on  administering.  Should  this  bill  be  dismissed, 
and  W.  H.  Heape  be  discharged  from  the  ne  exeat  bond,  the  complain- 
ants will  be  utterly  remediless.  The  rule  certainly  is,  that  generally  an 
administration  should  be  taken  out.  It  has,  however,  been  dispensed  with 
in  certain  extreme  cases.  There  is  another  ground  on  which  it  is  more 
than  doubtful  whether  an  administration  was  necessary  in  this  case.  The 
decree  of  the  Court  of  Appeals,  which  establishes  the  right  of  Mrs. 
Burgess  and  her  brother,  W.  H.  Heape,  to  the  negroes  in  question,  was 
delivered  prior  to  the  death  of  Mrs.  Burgess,  and  the  slaves  were  delivered 
to  W.  H.  Heape  in  right  of  himself  and  his  sister,  Mrs.  Burgess.  He  held 
them  for  both,  and  though  it  is  not  absolutely  certain  that  this  was  such 
a  reduction  to  possession  by  the  husband  as  to  attach  the  marital  rights 
of  Mr,  Burgess  to  them,  I  am  inclined  to  think,  in  such  a  case  as  this, 
that  as  between  the  husband  and  W,  H.  Heape,  at  least,  it  may  be  so 
considered.  If  not,  I  would  postpone  the  decree,  to  give  Burgess  a 
further  opportunity  to  take  out  administration. 

Under  my  present  impression,  it  is  ordered,  that  the  defendant,  to 
deliver  up  the  slaves,  to  which  the  complainants  are  entitled  by  said 
decree,  and  account  for  hire  and  labor  before  the  Commissioner.  Costs 
to  be  paid  out  of  the  estate. 

From  this  decree  the  defendant  appealed  on  the  following  grounds  : 

1.  Because  the  decree  determines,  that  the  possession  of  the  slaves  in 
litigation  by  William  H.  Heape,  was  such  a  reduction  to  possession  by 
Mrs.  Burgess,  as  that  the  marital  rights  of  Burgess  attached  on  them. 

2.  Because  the  decree  determines  that  the  defendant  should  account, 
although  no  administration  is  taken  out  on  the  estate  of  Mrs.  Burgess. 

The  plaintiff  also  appealed  and   moves  to  modify  the   Chancellor's 
decree,  so  that  the  costs  maybe  paid  by  the  defendant  *in  punish-  r*399 
ment  of  his  fraud,  and  to  allow  the  plaintiffs  to  take  their  value,  •- 
instead  of  the  slaves  themselves. 

R  B.  Smith,  Attorney-General,  for  the  defendant.  Burgess  married 
before  the  decree,  he  never  was  a  party  to  the  proceeding.s,  and  the 
decree  does  not  notice  him  ;  this  defendant  was  then  the  only  person 
authorized  to  receive  the  negroes,  for  if  Burgess  had  applied  for  them  the 
Court  might  have  ordered  a  settlement  on  his  wife.  Wm.  H.  Burgess, 
the  minor,  is  not  properly  a  party  to  this  bill,  for  the  incidental  reference 


272  SOUTH    CAROLINA   EQUITY    REPORTS.  [*399 

by  his  father  assuming  the  character  of  guardian  cannot  make  the  son  a 
party,  when  he  admits  that  he  has  not  given  security,  and  when  he  claims 
the  whole  of  the  property  for  himself  So  that  the  bill  must  be  regarded 
as  filed  by  Kobert  S.  Burgess  alone,  and  if  his  marital  rights  have  not 
attached,  it  must  be  dismissed. 

If  personal  property  is  not  reduced  into  possession  by  the  husband  in 
the  life-time  of  the  wife,  the  marital  rights  will  not  attach,  3  Dess.  Rep. 
135-6;  lb.  155  ;  Sturginer  v.  Hannah,  2  N.  &  M'C.  147.  The  case  of 
the  Ordinary  v.  Geiger,  2  N.  &  M'C.  151,  arose  under  a  deed,  which, 
from  its  delivery  implies  a  right  of  immediate  possession.  As  to  the 
ground  that  here  is  Si  joint  tenancy,  and  that  the  possession  of  one  tenant 
is  the  possession  of  the  other,  it  may  be  remarked,  that  when  the  defend- 
ant got  possession,  if  he  did  not  choose  to  deliver  them,  the  right  of  his 
sister  was  a  mere  chose  in  action  ;  and  this  is  all  the  right  her  husband 
can  claim  ;  he  can  obtain  only  one-third  of  her  interest  under  the  Act 
of  '91. 

If,  however,  the  complainant  is  entitled  to  the  property  as  between  him 
and  the  defendant,  he  may  not  be  entitled  to  it  as  against  the  creditors  of 
Mrs.  Burgess ;  and  for  this  reason  the  Courts  liave  laid  it  down  as  an 
indispensable  rule  that  administration  must  be  taken  out,  and  that  "no 
person,  though  next  of  kin,  can  sue  at  Law  or  Equity  for  the  personal 
jiroperty  of  an  intestate,  unless  he  takes  out  administration."  Farley  v. 
Farlev,  1  M'C.  Ch.  514  ;  Gregory  v.  Forrester,  lb.  324  ;  Bradford  v. 
Fekler,  2  M'C.  Ch.  169. 

^  -,  ^Ulmore,  for  the  plaintiffs.  The  bill  in  the  suit  in  which  the 
-I  negroes  were  recovered,  was  in  the  name  of  the  defendant  and  his 
sister  Eliza — the  recovery  was  in  the  name  of  both.  The  marriage  was 
before  the  decree,  and  Mrs.  Burgess'  death  after  it.  Mrs.  Burgess  had 
then  the  same  right  to  the  possession  that  the  defendant  had,  and  Burgess 
stood  exactly  in  the  same  right  his  wife  did.  As  to  the  objection  that 
the  minor  is  not  a  party  to  this  bill,  it  is  now  made  for  the  first  time. 
The  bill  first  sets  up  the  claim  of  Burgess  to  the  whole  by  virtue  of  his 
marital  rights,  and  if  they  have  not  attached,  he  then  presents  the  claims 
of  his  son  as  a  distributee  of  his  mother ;  and  it  was  shown  on  the  trial, 
that  he  had  been  appointed  a  guardian. 

That  there  must  be  a  reduction  into  possession  before  the  rights  of  the 
husband  attach,  is  not  denied.  The  question  is,  what  shall  be  considered 
such  a  reduction  into  possession  ?  It  is  not  necessary  that  there  should 
be  an  actual  manucaption  by  the  husband,  either  personally  or  by  his 
agent.  The  possession  of  an  agent  before  or  during  coverture,  has  been 
held  sufficient,  as  in  the  case  of  a  guardian  :  Davis  v.  Bharae,  1  M'C. 
Ch.  195.  And  in  the  late  case  of  Riley  v.  Riley,  (not  rejiorted)  decided 
in  this  Court,  May,  183o,  the  same  doctrine  is  held.  The  case  of  the 
Ordinary  v.  Geiger,  2  N.  &  M'C.  Ch.  151,  is  still  stronger,  for  it  makes 
tlie  possession  of  a  joint-tenant  in  negroes,  vest  the  undivided  fourth  part 
of  them  in  the  husband  of  one  of  the  joint-tenants,  even  against  herself,  as 
survivor  of  her  husband.  In  what  did  that  case  differ  from  this  ?  That 
was  founded  on  a  deed,  "  giving,"  says  the  defendant's  counsel,  "  a  right 
of  immediate  possession."  This  is  on  a  decree,  giving  an  equally  clear 
and  undisputed  right  of  possession  to  both  Heape  and  his  sister.     They 


*400]  COLUxMBiA,    DECEMBER,    1833.  273 

were  joint-tenants  under  that  decree  in  the  negroes  recovered  in  their 
names  ;  each  equally  entitled,  and  equally  secured  by  the  Court.  Ileape 
recovered  the  property  as  agent  for  his  sister.  If  a  partition  was  neces- 
sary in  this  case,  before  the  marital  rights  would  attach,  so  it  was  ecpiallv 
necessary  in  the  case  of  the  Ordinary  v.  Geiger ;  and  as  it  was  not  con- 
sidered necessary  there,  so  it  will  not  be  here. 

*As  to  the  defendant's  second  ground  of  appeal. — Should  the  r.;. ,., 
Court  determine  that  the  marital  rights  of  Robt.  S.  Burgess  did  L'"^^^ 
not  attach,  then  comes  the  question,  is  administration  absolutely  necessary 
before  complainants  can  recover  ?  As  a  general  rule  it  is  necessary  to  have 
administration.  It  is  a  wise  rule,  intended  to  subserve  the  course  of 
justice  and  protect  the  rights  of  third  persons;  but  like  all  other  rules,  if 
inflexible,  it  would  in  some  cases  defeat  its  own  object.  When  a  case 
occurs  where  it  would  utterly  defeat  the  course  of  justice,  every  principle 
of  right  and  sound  policy  demands  an  exception  to  govern  the  case. 
Exceptions  have  sprung  up,  been  recognized  and  acted  on.  In  the  case 
of  Gregory  v.  Forrester,  1  M'Cord,  Ch.  Rep.  325,  Judge  Nott  expressly 
recognizes  this  principle ; — a  number  of  cases  are  there  referred  to  in 
which  the  rule  was  relaxed:  Burrows  v.  Elton,  11  Ves.  29,  39,  Alsager 
V.  Rowley,  6  Yes.  150.  In  a  late  case  in  our  own  Courts,  decided  at 
Charleston,  Walker,  administrator  of  Halls,  v.  John  May,  the  following 
facts  existed  and  were  considered  by  the  Court  as  exempting  defendant 
from  the  technical  enforcement  of  the  rule.  Hall  the  father  gave  by  deed 
four  negroes  to  four  sons  and  died — the  widow  married  Robt.  May. 
All  the  children  in  succession  died  under  age — Robt.  May  sold  the 
negroes  and  died,  leaving  his  widow,  and  two  children  by  her.  Walker 
married  one  of  the  daughters,  administered  upon  the  estate  of  the  young 
Halls,  and  filed  his  bill  against  the  purchaser,  John  May.  The  Court 
below,  and  the  Appeal  Court  also,  decided,  that  as  all  the  rights  of  the 
young  Halls  vested  in  the  mother  Mrs.  Robt.  May,  no  administration 
was  necessary — that  creating  an  exception  to  the  rule  ;  and  to  a  sugges- 
tion as  to  creditors  of  the  young  Halls,  it  was  held,  that  that  was  rebutted 
by  the  fact  that  ten  or  twelve  years  had  elapsed  and  no  claims  were 
presented.  Is  this  case  one  of  such  a  special  character  as  will  come 
within  the  exceptions  which  are  admissible  ?  In  the  first  place  let  it  be 
observed.  That  Burgess  in  his  own  right  and  as  guardian  of  his  child, 
represents  every  right  that  could  have  belonged  to  his  wife. — Secondly, 
That  he  used  every  effort  to  procure  administration  and  failed. — Thirdly, 
That  the  defendant  has  run  away  to  Alabama,  carrying  away  and  selling 
*the  negroes,  and  is  only  to  be  reached  through  this  suit,  and  the  r:::4Q2 
bond  he  has  given  under  the  ne  exeat  writ,  or  in  the  language  of 
the  decree  "  should  this  bill  be  dismissed,  and  W.  H.  Heai)e  be  disclmrgcd 
from  the  ne  exeat  bond,  the  complainants  will  be  utterly  remediless.'' 
Could  a  stronger  array  of  facts  be  presented  showing  the  absolute  and 
utter  failure  o'f  justice  if  the  technicalities  of  the  law  are  to  be  made 
inflexible  ?  If  so  justice  is  sacrificed  to  forms,  and  rules  of  law  relent- 
lessly adhered  to  when  every  reason  for  their  existence  has  failed.  But 
it  is  objected  that  the  rights  of  creditors  of  Mrs.  Burgess  may  be  defeated 
by  supporting  this  decree.  Are  they  in  more,  or  less  danger,  from 
reversing  it  and  discharging  defendant  ?  He  has  run  away — wasted  the 
property — and  the  only  possible  chance  of  securing  the  fund  to  any  person 
Vol  I.— 18 


274  SOUTH   CAROLINA   EQUITY    REPORTS.  [*402 

whatever  is  upon  the  ne  exeat  bond,  to  which  the  security  is  good. 
Again,  when  they  put  in  any  claims  it  will  be  fnll  time  to  protect  them — 
there  are  none — not  one  has  ever  been  heard  of.  This  bill  was  filed  the 
23d  May,  1821.  The  child  of  the  marriage  is  stated  therein  under  oath 
at  two  years  old,  and  of  course  Burgess  had  married  his  wife  in  1817,  or 
1818.  If  she  owed  any  debts  lie  was  responsible  for  them.  They  were 
paid  or  barred  by  the  statute  of  limitations  more  than  ten  years  ago.  No 
claims  of  creditors  can  exist ;  but  if  they  do,  the  fund  is  in  Court,  and 
the  defendant  w^ill  not  object  to  its  being  i)aid  into  the  Commissioner's 
hands,  and  the  oreditors  called  in  to  establish  them  and  receive  payment, 
and  the  balance  only  paid  out  under  the  order  of  the  Court. 

If  however  the  Court  should  determine  that  administration  is  necessary, 
it  will  give  time  to  complainants  to  make  fnrther  efforts,  and  in  the  mean 
time  will  order  the  collection  of  the  amount  coming  to  them,  and  to 
remain  subject  to  the  order  of  the  Court. 

As  to  the  complainants'  grounds  of  appeal  : 

1.  As  to  costs,  this  case  has  arisen  entirely  from  the  bad  faith  and  mis- 
conduct of  defendant,  Wm.  H.  Heape,  and  he  ought  to  pay  the  costs — at 
the  least  he  should  pay  his  own. 

2.  The  decree  should  be  so  remodeled  as  to  allow  the  com])lainants  to 
*ifim  obtain  the  value  of  their  negroes,  as  they  cannot  *find  the  negroes, 

-•  they  having  been  carried  off';  or  the  decree  should  order,  that  in 
case  of  the  non-delivery  of  the  negroes  by  a  given  day,  the  bond  be 
forfeited,  and  collected  by  the  Commissioner  in  Equity. 

Smith,  Attorney- General,  in  reply.  As  to  the  first  ground  of  appeal. 
The  case  of  the  Ordinary  v.  Geiger,  was  a  case  of  joint  tenancy,  not  ten- 
ancy in  common. — It  was  a  case  under  a  deed,  where  the  form  of  delivery 
implies  a  right  of  possession  in  all  of  the  joint  tenants,  and  these  charac- 
teristics plainly  distinguish  it  from  the  present  case. 

As  an  exception  in  this  case  to  the  rule  that  administration  must  be 
taken  out  upon  an  estate,  before  suit  can  be  maintained,  the  cases  of 
Burrows  v.  Elton,  11  Yes.  29,  and  Alsager  v.  Rowly,  G  lb.  750,  cpioted 
in  Gregorin  v.  Forrester,  1  M'C.  325,  were  relied  on,  but  neither  of  them 
apply.  These  were  cases  where  executors  or  administrators  existed,  and 
the  estates  were  represented,  and  they  only  determined  that  a  rule  existing 
for  the  benefit  of  creditors  may  be  waived  in  favor  of  creditors — they 
determine,  that  creditors  may  maintain  suit  against  the  estate  of  their 
debtor,  where  the  executor  or  administrator  is  a  bankrupt  and  cannot 
act,  or  insolvent  and  colludes.  But  the  case  here  is  between  a  distributee 
and  a  debtor  of  the  estate.  Is  the  debtor  responsible  to  him  without 
administration,  by  which  the  rights  of  creditors  will  be  protected  ?  The 
cases  of  Heath  v.  Percival,  1  P.  W.  682  ;  Plunket  v.  Penton,  2  Atk. 
51  ;  Higginson  v.  Air,  1  Des.  Rep.  427  ;  Riddle  v.  Mandeville,  3 
Cranch,  330 ;  are  all  cases  of  creditors  going  against  the  heirs  or  the 
funds  of  the  estate.  The  case  of  Walker,  adm'or,  of  Halls,  v.  John  May, 
decided  in  the  Court  of  Appeals,  in  February,  1830,  is  certainly  diff'erent 
from  these,  but  still  not  applicable  to  this  case.  In  the  following  extract 
from  the  decree,  the  Court  says — "The  circumstances  of  this  case  are 
peculiar.  The  intestates  were  all  infants  and  incapable  of  contracting 
debts.    They  lived  with  Robert  May,  the  husband  of  their  mother,  whose 


*403] 


COLUMBIA,    DECEMBER,    1833.  275 


duty  it  was,  and  who  did  provide  for  them  all  that  was  necessary,  and 
whatever  of  legal  obligation  the  law  raised  on  them  or  their  estates  vested 
in  him.  Thus,  not  only  negativing  *the  existence  of  any  other  r-^ 
interest,  but  showing  the  utter  impossibility  that  any  other  could  ^  "^^* 
exist.  All  the  objects  of  an  administration  have  therefore  been  oljtained. 
The  possession  of  May  did  wrong  to  no  one — he  only  had  that  to  which 
he  was  entitled.  If  he  held  in  trust,  it  was  for  himself — if  as  executor,  it 
was  in  his  own  right  instead  of  his  own  wrong,"  &c.  This  case  then  only 
determines  that  where  there  can  be  no  creditors,  a  rule  made  for  the 
protection  of  creditors  must  not  be  complied  with  or  required.  Here 
the  presumption  is,  that  there  are  creditors.  The  intestate  was  capable 
of  contracting  debts:  and  it  appears  that  the  complainant  can  give 
adecpiate  security  as  guardian  of  his  child  but  not  as  administrator  of  his 
wife. 

As  regards  the  plea  of  poverty,  it  is  one  so  easily  made,  that  it  would 
be  exceedingly  dangerous  in  practice.  It  is  against  the  insolvency  of  the 
administrator  that  securityship  is  intended  to  guard.  But  here  it  is  con- 
tended, that  because  a  man  is  insolvent  he  is  to  give  no  security.  A 
man  of  property  may  act  fraudulently  with  respect  to  an  estate  committed 
to  his  charge,  and  yet  justice  be  fully  done  by  reimbursement  from  his 
property.  But  he  who  has  no  property  has  nothing  but  his  integrity  on 
which  others  can  rely.  Poverty  is  no  argument  for  a  good  character,  and 
affords  one  of  the  strongest  temptations  for  losing  it. 

Harper,  J.  I  understand  from  the  decree  of  the  Chancellor,  that  the 
slaves  in  question  were  deliyered  to  the  defendant  in  the  lifetime  of  Mrs. 
Burgess.  If  so,  I  have  no  doubt  the  marital  rights  of  her  husband 
attached  upon  them.  The  case  of  the  Ordinary  v.  Geiger,  2  N.  &  M'C. 
151,  is  in  point;  and  it  is  strengthened  by  that  of  Davis  v.  Rhame,  1 
M'C.  Ch.  195.  Mrs.  Burgess  and  her  brother  were,  I  suppose,  joint- 
tenants  of  the  slaves  ;  they  claimed  under  the  same  title ;  and  it  is  a 
familiar  maxim  for  preventing  the  effect  of  the  statute  of  limitations,  that 
the  possession  of  one  joint-tenant  is  the  possession  of  the  other.  They 
are  regarded  as  agents  for  each  other,  to  every  beneficial  purpose.  3 
Bac.  Ab.  690,  Tit.  Joint-tenants  and  ^tenants  in  common,  H.  3. 
So  it  is  said,  the  entry  of  one  tenant  in  common  is  the  entry  of 
both,  and  must  be  so  pleaded,  lb.  H.  2.  With  no  propriety  could  Mrs. 
Burgess'  interest  in  the  slaves  in  the  possession  of  the  defendant,  be  called 
a  chose  in  action.  Her  title  was  complete  and  vested.  Delivery  is  said 
to  be  necessary  to  consummate  the  title  to  personal  property.  But  will 
not  a  delivery  to  one  joint-tenant  enui'c  to  the  benefit  of  both  ?  If  not  in 
her,  in  whom  was  the  title  of  a  moiety  of  the  slaves  ?  < 

As  the  slaves  have  been  carried  out  of  the  State,  so  that  a  writ  of  par- 
tition could  not  be  executed,  the  complainant  applies,  that  the  dcfenilant 
may  be  directed  to  account  for  the  value  of  the  portion  of  them  to  which 
the  complainant  is  entitled,  in  right  of  his  late  wife.  This  is  ordered  and 
decreed  accordingly.  In  other  respects,  the  Chancellor's  decree  is 
affirmed. 

Johnson  and  O'Neall,  Js.,  concurred. 


[*405 


276  SOUTH   CAROLINA   EQUITY   REPORTS.  [*405 


B.  W.  Capehart  and  Wife,  and  others,  v.  Lydia  Huey,  Administra- 
trix of  Wm.  Blackburn e,  and  the  Administrators  of  John  Huey, 
deceased. 

Where  a  wife,  before  marriage,  had  administered  on  an  estate  and  done  certain  acts 
amounting  to  devastavits,  the  moneys  arising  from  which  on  her  marriage  went 
into  tne  hands  of  her  husband;  after  the  decease  of  the  husband  on  a  bill  filed 
against  her,  and  the  administrators  of  her  husband  for  an  account  of  the  funds 
so  received,  it  was  held,  that  she  was  a  competent  witness  on  being  released  from 
all  liability  to  her  intestate's  estate;  and  perhaps  even  without  such  release. 
[*407] 

Generally  those  acts  of  a  guardian  are  binding  on  the  infant  which  are  for  the 
benefit  of  the  infant,  and  for  which  the  guardian  can  account;  he  may  therefore 
in  a  suit  brought  for  the  benefit  of  his  wards,  e.iecute  a  release  in  order  to  render 
a  witness  competent.  [*4(i9] 

The  husband  (or  if  he  be  dead,  his  administrator)  is  accountable  for  the  funds  of  the 
wife's  intestate  which  have  come  into  his  or  her  hands  during  coverture,  and 
which  may  not  be  left  in  specie  at  the  husband's  death  and  go  into  the  wife's 
possession.  [*410] 

An  executor  or  administrator  who  litigates  in  good  faith,  will  be  reimbursed  out  of 
the  estate  for  his  costs  and  expenses,  but  the  estate  he  represents,  and  which  is 
presumed  to  be  benefited  by  the  litigation,  must  bear  the  expense.  [*411] 

This  bill  was  filed  by  the  plaintiffs,  as  distributees  of  William 
Blackburne,  deceased,  against  his  administratrix  and  the  administrators 
of  her  second  husband,  for  an  account  of  the  estate,  charging  devastavits 
in  the  course  of  the  administration,  and  seeking  to  make  the  estate  of  the 
second  husband  liable  therefor. 

On  the  case  coming  before  Chancellor  Johnston,  at  Abbeville,  Jane, 
1832,  he  ordered  a  reference  to  the  Commissioner  to  make  up  the  accounts, 
reserving  the  legal  questions  until  the  coming  in  of  the  report.  On  this 
reference  the  following  facts  appeared  : 

♦ion  *^'^'^-  Blackburne  died  intestate,  possessed  of  a  considerable 
^-'  personal  estate,  leaving  a  widow  and  children.  The  widow, 
Lydia,  administered  and  sold  all  the  personal  property.  With  $1,000  of 
the  money  thus  obtained,  she  purchased  a  tract  of  land,  and  took  the 
titles  in  her  own  name  ;  and  she  loaned  $.500  of  this  money  to  Thomas 
Blackburne,  and  took  a  bond  for  the  payment  to  herself  in  her  own  right. 
She  afterwards  intermarried  with  John  Huej'.  They  sold  the  land  for 
$600,  and  Huey  received  the  money,  and  he  also  received  payment  on  the 
bond  of  Thomas  Blackburne.  In  1830,  John  Huey  died  intestate,  and 
Owen  Selby  and  Joseph  Huey  administered  on  his  estate.  On  the 
reference,  Lydia  Huey  was  offered  as  a  witness  for  the  plaintiffs.  She 
was  objected  to  as  incompetent ;  but  on  a  release  of  her  liability  being 
executed  by  Thomas  Blackburne,  the  assignee  (after  suit  brought)  of  one 
of  the  plaintiffs,  and  the  guardian  of  the  others,  the  Commissioner  received 
her  as  a  witness. 

On  the  state  of  facts  here  presented,  the  Commissioner  in  his  report, 
charged  the  estate  of  John  Huey  with  the  money  received  by  him  on  the 
sale  of  the  land,  and  also  with  the  money  received  by  him  on  Thomas 
Blackburne's  bond,  with  interest  on  both  amounts ;  and  allowed  credit 
for  payments  made  by  him  on  account  of  the  estate  ;  but  refused  to  allow 


*406] 


COLUMBIA,    DECEMBER,    1833.  277 


the  administrators  a  counsel  fee  in  this  case,  out  of  the  amount  charged 
against  the  estate  of  Huey. 

To  this  report  the  admiuistrators  of  John  Ilucy  filed  the  following 
exceptions  : 

1.  That  the  Commissioner  received  the  evidence  of  Lydia  Huey,  one 
of  the  defendants,  she  being-  incompetent  to  give  evidence,  and  the  release 
not  rendering  her  competent. 

2.  That  the  Commissioner  cliarged  the  estate  of  John  Iluey  with  the 
sum  he  obtained  for  the  land,  when  his  estate  is  not  liable  therefor,  inas- 
much as  the  purchase  by  Lydia,  the  administratrix,  iu  her  own  name  with 
the  funds  of  her  intestate,  was  a  devastavit  for  which  the  estate  of  John 
Huey  is  not  now  answerable. 

*3.  Because  Lydia  was  at  all  events  guilty  of  a  devastavit  to  r:i:  ^a^ 
the  amount  of  four  hundred  dollars,  the  difference  between  the  ^ 
sum  given  for  the  land  and  that  for  which  it  sold. 

4.  That  the  Commissioner  erred  in  charging  John  Huey's  estate  with 
Thomas  Blackburue's  bond,  inasmuch  as  the  taking  of  this  bond  was  a 
devasfavit  on  the  part  of  Lydia,  the  administratrix,  for  which  the  estate 
of  Huey  is  not  now  liable  ;  and  also  inasmuch  as  it  was  payable  to  Lydia 
in  her  own  right,  and  John  Huey  had  no  notice  that  it  was  for  money  of 
the  estate  of  Wm.  Blackburne. 

5.  That  the  Commissioner  refused  to  allow  credit  to  the  administrators 
of  John  Huey  for  a  counsel  fee  in  this  case,  out  of  the  sum  with  which 
their  intestate  is  char^^ed  on  account  of  Wm.  Blackburue's  estate. 

The  case  was  heard  on  these  exceptions  before  Chancellor  De  Saus- 
SURE,  at  June  Term,  1833.  The  Chancellor  overruled  the  four  first 
exceptions,  and  sustained  the  last. 

The  administrators  of  John  Huey  appealed,  because  the  Chancellor 
overruled  the  four  first  exceptions  as  above  stated  ;  and  the  plaintiffs 
appealed,  because  he  sustained  the  last. 

Burt,  for  the  plaintiffs. 

Noble  and  Calhoun,  for  the  administrators  of  Huey. 

O'XeaIvL,  J.  The  questions  made  in  this  case  may  be  referred  to 
three  general  heads,  to  wit :  L  The  competency  of  the  witness,  Lj'dia 
Huey.  2.  The  liability  of  the  representatives  of  her  (deceaseds  husband, 
John  Huey,  to  account  for  the  funds  of  William  Blackburne,  (deceased,) 
which  came  to  his  hands,  during  the  coverture  of  the  said  Lydia.  3.  The 
propriety  of  the  allowance  of  the  counsel  fee  to  the  defendants'  solicitor 
out  of  the  funds  of  Wm.  Blackburne,  (deceased).  These  subjects  of 
inquiry  embrace  all  the  grounds  of  appeal  taken  by  the  complainants  as 
well  as  the  defendants  ;  and  will  be  considered  and  clecided  in  their  order. 

L  The  fact  of  being  jjarticejjs  cynminis,  will  not  render  a  witness 
incompetent  to  testify  for  or  against  the  other  parties  :  it  generally  goes 
to  the  credit  and  not  the  competency:  it  is  *true  that  when  the  r^^Qg 
witness's  testimony  would  subject  him  to  punishment  or  infamy,  he 
may  decline  to  answer  the  questions  propounded  to  him.  But  this  is  the 
protection  of  the  witness;  it  would  be  no  objection  in  the  mouth  of  either 
plaintiff  or  defendant.     A  party  to  a  deed,  contract  or  other  matter,  is  a 


278  SOUTH    CAROLINA    EQUITY    REPORTS.  [*4:08 

competent  witness  unless  disqualified  by  interest  in  the  event,  or  in  the 
record  as  matter  of  evidence.     Knight  v.  Fackhard,  8  M'C.  71. 

To  determine  on  the  competency  of  the  witness,  Lydia  Huey,  it  is 
necessary  to  inquire  as  to  her  interest  in  the  event  of  the  suit  to  be  pro- 
duced by  her  testimony.  For  although  she  is  a  defendant,  and  at  law 
could  not  be  sworn,  yet  in  equity  the  rule  is,  that  she  is  competent  if  she 
have  no  interest  in  the  point  to  which  her  testimony  is  directed.  Wright 
V.  Wright,  2  M'C.  C.  R.  105  ;  Farr  v.  Sims,  et  al.,  decided  at  this  place, 
January  Sittings,  (in  Equity,)  1832. 

There  is,  I  think,  no  doubt  that  she,  as  well  as  her  late  husband,  Huey, 
is  chargeable  with  the  fund  in  question,  and  a  decree  against  him,  would 
not  of  itself  discharge  her  :  Adair  v.  Shaw,  1  Sch.  &  Lef.  255.  It  must 
be  accompanied  with  satisfaction  to  have  such  an  effect  against  the  claims 
of  the  complainants.  I  think  she  might  have  been  a  witness  for  the" com- 
plainants without  a  release.  For  her  evidence,  establishing  the  lialjility 
of  John  Huey,  would  not  of  itself  discharge  her  :  it  only  subjects  his 
estate  to  a  concurrent,  but  not  a  paramount  liability,  and  hence  she  had 
no  direct  ])ecuniaiy  interest  in  the  event  of  the  suit,  or  in  the  record  as 
matter  of  evidence. 

But  if  there  is  a  doubt  on  the  position  assumed,  there  can  be  none  as 
to  her  competency  if  she  has  been  properly  released.  This  depends  upon 
the  power  of  Thomas  ]>lackburne  legally  to  release  her. 

It  seems  that  the  complainant,  Capehart,  assigned  his  wife's  interest  to 
Thomas  Blackburne,  who  is  the  guardian  of  the  minor  complainants.  As 
assignee  and  guardian  he  executed  the  release,  It  is  necessary,  therefore, 
to  look  to  his  power  in  each  of  these  characters. 

The  husband  had  the  right  to  receive  from  the  defendants  his  wife's 
*4noi  distributive  share  of  her  father's  personal  estate  ;  *such  a  re- 
-l  duction  into  possession  would  defeat  the  wife's  equity.  So,  too, 
the  husband  might  assign  it ;  and  if  the  assignee  for  a  valuable  con- 
sideration can  and  does  reduce  it  into  possession  without  the  aid  of  the 
Court  of  Equity,  her  equitable  rights  would  not  be  allowed  to  be  set  up 
against  his  legal  estate.  Clancy's  Rights  of  Married  Women,  445.  In  all 
cases  where  the  wife's  ecpiity,  and  the  husband's  or  his  assignee's  right  to 
possession,  are  brought  into  collision,  the  wife,  or  the  Court  for  her,  must 
make  the  question  ;  if  she  is  content  that  the  question  should  not  be  made, 
the  defendants  who  may  be  in  the  possession  of  her  funds  cannot  make  the 
objection. — After  there  is  a  recovery  at  the  instance  of  the  assignee,  and 
before  he  reduces  the  fund  into  actual  possession,  the  Court  might  inter- 
fere and  set  up  the  wife's  equity.  The  assignee  of  the  husband  has,  in 
equity,  all  the  rights  which  he  has  ;  in  it,  he  is  regarded  to  all  intents 
and  purposes  as  the  owner  of  the  funds  assigned,  His  release  will  operate 
to  the  same  extent  which  the  husband's  would.  The  husbaiul  may 
release  the  chose  in  action  of  his  wife,  and  his  release  would  at  all  events 
bar  and  prevent  any  recovery  upon  it  during  his  life.  I  think  it  would 
operate  as  an  entire  discharge.  Either  point  of  view  is  enough  for  this 
case  ;  for  if  the  release  is  only  good  for  the  life  of  the  husband,  it  is  a  dis- 
charge of  the  witness  from  any  present  interest  in  the  event  of  the  suit — 
it  may  be  that  a  future  possible  interest  may  exist,  but  this  would  be 
only  an  objection  to  the  credit  and  not  the  competency. 

A  guardian,  as  the  ofQcer  of  the  Court  of  equity,  is  charged  with  the 


*409]  COLUMBIA,    DECEMBER,    1833.  279 

the  preservation  of  all  the  rights  and  interests  of  the  ward.  Tie  caiinot, 
however,  generally,  change  the  nature  or  diminish  the  capital  of  the 
estate  ;  but  with  this  exception,  he  is  authorized  to  do  any  act  for  the 
infant  which  a  prudent  man  in  the  management  of  his  own  business 
would  do.  Such  an  act  must  of  necessity  fall  within  the  rule  which  is,  I 
think,  well  stated  in  Bingham's  Law  of  Infancy,  152,  to  be,  that  "  it 
seems  generally  that  those  acts  of  the  gnardian  are  binding  on  the  infant, 
which  are  for  the  benefit  of  the  infant,  and  for  which  the  guardian  can 
account;  for  so  far  his  authority  extends."  In  Milner  v.  Lord  Hare- 
wood,  18  V.  Jr.  259 — it  *was  held  that  an  act  of  the  guardian  r^.^ir. 
without  authority,  if  beneficial  to  the  infant,  would  be  sustained.       •- 

The  release  here  is  an  act  for  which  the  guardian  can  and  must 
account,  if  he  thereby  fails  in  recovering  the  shares  of  his  wards.  No 
loss  can  result  to  them  in  this  respect,  for  his  release  makes  him  per- 
sonally liable  for  the  fund  ;  and  it  is  to  be  presumed  that  he  has  given 
good  security  for  the  discharge  of  his  duties.  So  far  I  think  there  is  no 
difficulty  in  allowing  his  release  to  prevail.  It  does  not  change  the 
nature  or  diminish  the  capital  of  his  ward's  estate  in  the  hands  of  the 
defendant  or  in  those  of  the  guardian  ;  they  are  alike  money,  and 
the  amount  continues  the  same.  The  release  is  only  the  means  of 
reaching  the  justice  of  the  case,  and  fixing  the  defendants'  liability.  It 
may  be  (and  I  ought  so  to  conclude)  that  the  defendants'  liability  is  a 
better  security  for  the  wards  of  the  guardian,  than  Mrs,  Huey's.  The 
release  is,  I  think,  good,  and  the  witness  competent. 

2.  This  brings  up  the  question,  are  the  administrators  of  John  Iluey 
liable  to  account  for  the  proceeds  of  the  land,  and  also  for  the  amount 
received  on  the  bond  ?  In  the  case  of  Adair  v.  Shaw,  1  Sch.  &  Lef.  255, 
Lord  Chancellor  Redesdale  decides  the  very  question  as  to  the  general 
liability  of  the  surviving  husband  or  his  representatives,  (if  dead)  to 
account  for  the  funds  of  an  intestate  which  came  to  his  hands  during 
coverture,  through  the  administration  of  his  wife.  He  says,  "but  on 
principle,  and  what  I  conceive  to  be  the  established  rule  of  Courts  of 
Equity,  I  think  there  can  be  no  doubt  that  Mrs.  Shaw  is  responsible,  and 
that  the  assets  of  Mr.  Shaw  are  responsible  to  this  extent,  viz.  :  Mrs. 
Shaw  for  the  whole,  and  Mr.  Shaw's  assets  for  whatever  came  into  his 
hands,  that  is  what  came  to  the  hands  of  himself  or  his  wife  during  the 
coverture,  except  so  far  as  Mr.  Shaw  left  assets  in  specie  of  the  testator, 
after  his  death,  which  might  have  come  into  the  hands  of  Mrs.  Shaw  : 
whatever  might  have  been  so  left  he  would  not  have  been  accountable 
for,  but  she  alone  would." 

Taking  it  to  be  well  settled  law,  that  the  husband  or  his  administrator 
is  accountable  for  the  funds  of  the  wife's  intestate  which  may  come  to  his 
or  her  hands  during  coverture,  and  ''nvhich  may  be  not  left  in  p^jj 
specie  at  the  husband's  death  and  come  to  the  wife's  possession,  it 
is  only  necessary  to  inquire  how  the  facts  stand  in  this  case.  It  seems 
that  Mrs.  Huey  with  the  funds  of  the  estate  of  Ulackburne  purchased  a 
tract  of  land  and  took  the  title  in  her  own  name  ;  that  subsequent  to  her 
second  marriage  she  and  her  husband  sold  it,  and  he  received  the  pro- 
ceeds of  the  sale.  It  is  plain,  on  authority  and  principle,  that  on  the 
purchase  of  the  land  by  the  admiiustratrix  of  Blackburne  with  the  funds 
of  his  estate,  a  trust  resulted  in  favor  of  the  estate  :  and  the  land  or  its 


280  SOUTH   CAROLINA   EQUITY   REPORTS.  [*411 

proceeds  when  sold,  were  the  assets  of  the  intestate  Blackburne.  Watson, 
Ordinary,  v.  Whitten,(a)  decided  at  this  place,  May  Term,  1832.  The 
proceeds  of  the  land  being  assets  and  coming  to  Mr.  Huey's  hands 
during  coverture  he  is  properly  charged  with  the  amount  thereof.  The 
bond  is  still  plainer,  for  that  was  given  for  the  money  collected  and 
loaned  by  the  administratrix,  as  was  her  duty;  the  amounts  received 
upon  it  by  Mr.  Huey,  were  received  by  him  in  a  plain  course  of  adminis- 
tration, viz. :  to  receive  and  let  to  interest  the  money  of  the  intestate — 
and  he  is  accountable  for  the  sums  which  he  so  received. 

3.  I  think  there  can  be  no  plainer  proposition  than  that  the  defendants, 
the  administrators  of  Huey,  are  not  entitled  to  charge  and  be  allowed 
against  Blackburne's  estate,  the  counsel  fee  paid  to  their  solicitor  in  this 
case.  The  general  rule  in  equity  is  settled  in  so  many  cases  that  it  has 
ceased  to  be  necessary  to  refer  to  them  to  establish  its  existence — that  an 
executor  or  administrator  who  litigates  in  good  faith  is  entitled  to  be 
reimbursed  out  of  the  estate  for  his  costs  and  expenses.  The  estate 
represented  by  the  executor  or  administrator  and  legally  presumed  to  be 
benefitted  by  the  litigation,  is  the  one  which  must  bear  the  expenses.  In 
this  case  the  defendants  the  administrators  of  Huey  represent  his  estate 
alone,  and  for  its  benefit  their  defence  was  made,  and  out  of  it  the  counsel 
fee  is  properly  payable.  Blackburne's  estate  is  not  represented  by  them, 
they  stand  in  no  relation  of  confidence  to  it,  their  claim  and  defence 
are  hostile  to  the  rights  of  the  complainants,  and  were  an  injury  instead 
of  a  benefit  to  the  estate  represented  by  the  complainants.  The 
*41^1  *^^^ow^^ce  of  the  counsel  fee  out  of  Blackburne's  estate  was 
''^  improper. 

It  is  ordered  and  decreed  that  the  Chancellor's  decree  be  reformed  as 
to  the  allowance  of  the  counsel  fee  of  defendants'  solicitor  out  of  the 
estate  of  Wm.  Blackburne ;  in  all  other  respects  it  is  affirmed,  and  the 
Commissioner's  report  confirmed  generally. 

Johnson  and  Harper,  Js.,  concurred. 


Ex  parte  Forgy  M'Cleland. 
Costs  not  allo-wed  for  a  defence  to  a  petition  in  Chancery.  [*412] 

Newberry,  July,  1833.  This  was  a  petition  praying  compensation  for 
the  board  of  certain  minors,  of  whom  the  defendant,  Rudd,  was  guardian. 
The  petition  was  resisted,  and  on  the  hearing  before  Chancellor  Be 
Saussure,  dismissed  with  costs.  In  taxing  the  costs,  the  Commissioner 
refused  to  allow  costs  to  the  defendant's  solicitor,  for  filing  the  answer 
and  making  the  defence.  On  appeal  to  the  Chancellor,  he  ordered  the 
costs  to  be  taxed ;  and  an  appeal  was  taken  to  this  Court. 

Caldwell  and  Fair,  for  the  motion. 

Dunlap  and  Summer,  contra. 

Johnson,  J.     None  of  the  acts  of  the  legislature  regulating  the  fees  of 
(a)  Not  reported. 


*412]  COLUMBIA,    DECEMBER,    1833.  281 

the  officei's,  make  any  provision  for  a  defence  to  a  petition  in  tlie  Court 
of  Chancery,  and  however  me-ritorious  the  claim  may  be,  the  Court  lias 
no  authority  to  regulate  it.  Costs  are  not  allowed  by  the  common  law, 
and  whoever  claims  to  charge  them,  must  put  his  finger  upon  the  Act 
which  allows  it.  The  order  of  *the  Circuit  Court,  directing  that 
ten  dollars  should  be  taxed  as  costs,  is  therefore  reversed,  and  the 
motion  in  behalf  of  the  defendant  is  dismissed. 

O'Neall  and  Harper,  Js.,  concurred. 


[*413 


William  Pinchback  vs.  JamEs  M'Craven, 

Generally,  where  a  party  makes  a  single  question  in  a  case,  and  tbat  is  tleciileJ 
against  him,  he  will  not  be  entitled  to  costs;  if  he  make  several  questions,  some 
of  which  are  decided  for.  and  others  against  him,  he  will  be  entitled  to  tax  costs 
under  a  decree  allowing  them  to  him.  [*413] 

A  charge  for  copies  of  opinions  of  the  Appeal  Court  is  admissible.  [*4i4] 

Abbeville,  June,  1833.  The  plaintiff  had  obtained  a  decree  in  this 
case  against  the  defendant,  for  a  certain  amount  with  costs.  In  the  pro- 
gress of  the  case  the  plaintiff  filed  an  exception  to  the  Commissioner's 
report,  which  was  overruled  by  the  Chancellor — an  appeal  taken  thereon, 
and  the  Chancellor's  decision  sustained  by  this  Court.  In  taxing  costs, 
the  Commissioner  allowed  the  plaintiff's  solicitor  costs,  for  the  exception, 
the  argument  in  the  Court  below,  and  the  briefs  and  argument  in  this 
Court ;  and  he  also  taxed  costs  against  the  defendant  for  copies  of  the 
opinions  of  this  Court,  which,  however,  it  was  admitted,  were  necessary 
on  the  trial.  Chancellor  De  Saussure  sustained  this  taxation,  and  the 
defendant  appealed. 

Burt,  for  the  motion. 

Caldwell,  contra. 

O'Neall,  J.  We  think  that  the  complainant  is  not  entitled  to  tax 
the  costs  of  his  exception  to  the  Commissioner's  report,  the  argument  in 
the  Circuit  Court,  the  briefs  for,  and  argument  in,  the  Court  of  Appeals. 

It  seems  that  the  complainant  was  dissatisfied  with  the  Commissioner's 
report  in  a  single  point.  That  was  decided  against  him  by  the  Chan- 
cellor, and  on  it  alone  he  appealed  to  this  Court,  where  the  decision  was 
also  against  him.  His  costs,  incurred  in  this  respect,  were  therefore 
^unnecessary,  and  his  adversary  is  not  bound  to  pay  them.  Gene-  r^^j^ 
rally,  where  a  party  makes  a  single  question  in  a  case,  and  that  is 
decided  against  him,  he  cannot  and  ought  not  to  expect  costs.  He  is, 
in  this  respect,  in  default.  If,  as  is  most  usual  in  Chancery,  he  makes 
several  questions,  some  of  which  are  decided  for  him  and  others  against 
him,  he  would  be  entitled  to  tax  costs  under  a  decree  allowing  them 
to  him. 

The  charge  for  copies  of  opinions  of  the  Court  of  Appeals,  was  pro- 
perly allowed— it  was  cost  actually  paid,  and  for  which  the  party  paying 
it  was  entitled  to  be  reimbursed. 


282  SOUTH    CAROLINA   EQUITY   REPORTS.  [*4]  4 

The  Chancellor's  decree  is  modified  according  to  the  rules  stated  in 
this  opinion ;  and  the  Commissioner  is  directed  to  reform  his  taxation 
accordingly. 

Johnson  and  Harper,  Js.,  concurred. 


John  C.  Vaughan,  and  others,  official  creditors  of  Thomas  P.  Evans, 
Commissioner  in  Equity,  vs.  Thomas  P.  Evans,  Thomas  Lang, 
John  Cantey,  John  Whitaker,  Ben.  Hale,  and  others. 

Where  a  Commissioner  in  Equity  who  had  be^n  re-elected  at  the  expiration  of  his 
first  term,  had  received  moneys  during  his  first  term  which  were  not  demanded 
or  ordered  to  be  paid  over  or  invested  during  that  term,  the  securities  to  his 
official  bond  for  the  first  term  are  not  liable  therefor,  unless  it  be  shown  that  the 
Commissioner  had  wasted,  or  converted  to  his  own  use,  the  funds  in  his  hands; 
and  in  the  absence  of  such  evidence,  the  presumption  is  that  he  retained  the 
funds  and  that  they  were  in  his  hands  as  his  own  successor.  [*428] 

But  where  the  Commissioner,  by  orders  of  the  Court  during  the  first  term,  was 
directed  to  pay  over  a  part  of  the  funds  then  in  his  hands,  and  to  invest  a  part, 
and  neglected  to  comply  with  these  orders;  it  was  held,  that  the  failure  to  pay 
over  or  invest,  was  a  breach  of  the  condition  of  the  bond,  and  that  the  application 
for  such  an  order  was  prima  facie  evidence  of  a  demand,  and  the  sureties  to  the 
bond  of  the  term  in  which  the  orders  were  made  were  liable.  Harper,  .J., 
dissenting,  held  with  Chancellor  Johnston,  that  the  orders  to  pay  over  were  only 
an  authority  to  pay  over,  and  that  there  was  no  default  until  demand  made;  and 
that  the  failure  to  invest  could  only  make  the  sureties  liable  for  the  interest 
which  would  have  been  made  if  the  funds  had  been  invested.  [*429] 

An  assignment  by  a  debtor  to  a  trustee,  in  trust,  first  to  pay  existing  liens ;  second, 
to  pay  his  sureties  whatever  sums  they  might  have  to  pay  for  his  defaults  as 
Commissioner  in  Equity;  third,  to  pay  the  balance  to  such  of  his  creditors  as 
should  exhibit  their  demands  within  a  year,  and  agree  in  writing  to  take  a 
dividend  of  the  surplus;  is  valid.  [*430] 

Kershaw.  In  December,  1821,  Thomas  P.  Evans,  one  of  the  defend- 
ants, was  elected  Commissioner  in  Equity,  for  Kershaw  District,  and  on 
the  20th  of  that  month  executed  his  official  bond  for  $10,000,  conditioned 
for  the  faithful  discharge  of  his  duties  as  Commissioner,  for  four  years ; 
in  which  bond  the  defendants,  Thomas  Lang,  John  Cantey  and  Benjamin 
Hale  joined  as  sureties.  At  the  expiration  of  his  term,  he  was  re-elected 
Commissioner,  and  on  the  6th  February,  1826,  he  executed  another  official 


=415] 


*bond  of  that  date,  in  which  Thomas  Lang,  John  Cantey  and  John 
Whitaker  joined  as  his  sureties.  Evans  failed  to  discharge  his 
duties  as  Commissioner,  and  his  official  creditors  being  about  to  sue  his 
bond  for  the  second  terra,  his  sureties  thereto,  Lang,  Cantey  and  Whita- 
ker, filed  a  bill  in  Chancery  on  the  1.3th  July,  1830,  against  the  present 
defendants,  the  Charleston  Fire  and  Marine  Insurance  Company,  and  the 
present  complainants,  the  Yaughans,  calling  upon  them  and  all  others 
who  had  claims  against  Evans,  under  his  second  bond,  to  come  in  and 
prove  their  demands  before  the  Commissioner,  and  praying  that  suits  at 
law  might  be  enjoined,  and  the  sureties  discharged  upon  paying  into 
Court  the  amount  of  the  said  bond,  $10,000,  if  the  defaults  during  the 
second  term  amounted  to  that  sum.     In  that  suit  various  creditors  came 


1,59G 

55 

129 

31 

96 

83 

228 

39 

262 

60 

3t8 

33 

297 

36 

*415]  COLUMBIA,   JANUARY,    1834.  283 

in,  to  wit : — all  tlie  parties  to  this  suit  as  complainants  and  defendants, 
(except  Evans  and  his  sureties,)  and  proved  their  demands  under  the 
order  of  the  Court,  and  the  Commissioner  reported  their  united  claims 
against  Evans,  for  defaults  during  his  second  term,  to  amount  to  the  sum 
of  $32,935  98^.  Of  the  moneys  so  reported  against  Evans  and  his 
sureties,  under  the  second  bond,  the  following  were  received  by  Evans 
during  his  first  term,  and  never  paid  over  to  the  parties  thereunto  entitled, 
to  wit : 

Charl'u  Fire  and  Mar.  Ins.  Co.  (part  of  their  claim),         $\ 

Edward  Newhall, 

T.  &  F.  Dwight, 

Thomas  Scott, 

John  Hudson,         ........ 

Gr.  Archer  &  H.  M.  Archer,  (part  of  their  claim), 

Lene  Dubose  &  N.  Dubose,  besides  interest  from  March,  '25, 

James  Dunlap's  estate,    ....... 

J.  C.  Yaughan,  E.  V.  Yaughan,  and  C  R.  Yaughan,  part 

of  their  claim,  besides  interest  from  20th  March,  1825,    2,599  45 

At  June  Term,  1825,  during  the  first  term  of  office,  an  order  was  made 
by  the  Court,  in  the  case  of  J.  Chesnut  and  *G.  L.  Champion,  r^nf 
and  the  Charleston  Fire  and  Marine  Insurance  Company,  that  '- 
Evans  should  pay  to  the  Insurance  Company  all  the  money  then  in  his 
hands,  or  which  might  come  to  his  hands,  being  the  proceeds  of  the 
bonds  due  by  the  Chesnuts,  with  which  order  he  failed  to  comply. 

At  June  Term,  1824,  he  was  ordered  by  the  Court  to  invest  $1,000 
which  he  had  received  as  the  property  of  H.  M.  &  G.  Archer — he  did 
invest  $800,  but  failed  to  invest  $200,  and  has  never  paid  it  over  or 
accounted  for  it.  At  June  Term,  1825,  he  was  ordered  by  the  Court  to 
pay  to  the  Commissioners  of  the  Poor,  $131,  which  he  had  received  of 
the  estate  of  the  lunatic  John  Craven,  with  which  order  he  failed  to 
comply.  Except  in  the  cases  stated,  there  were  no  orders  by  the  Court, 
during  the  first  term,  to  pay  over  ;  and  there  was  no  proof  of  any  demand 
made  in  any  of  the  cases  during  the  first  term.  In  Archer's  case  and  in 
others,  the  funds  were  in  his  hands  in  the  shape  of  bonds,  which  he  has 
never  accounted  for  during  either  his  first  or  second  term.  Upon  going 
out  of  office  at  the  close  of  his  first  term,  he  did  not,  as  required  by  law, 
turn  over  to  his  successor,  or  deposit  among  the  records  of  the  Court,  his 
account  book,  in  which  his  accounts  with  the  estates  under  his  charge 
were,  or  ought  to  have  been  kept ;  nor  the  moneys,  bonds,  notes  and 
other  property  held  by  him  as  Commissioner,  under  the  authority  of  the 
Court;  nor  did  he  sign  any  schedule  or  account,  showing  what  remained 
in  his  hands  at  the  expiration  of  his  office. 

William  J.  Grant,  Esq.,  was  elected  the  successor  of  Evans,  and  on 
the  18th  of  January,  1830,  entered  upon  the  duties  of  his  office.  Evans 
has  not  turned  over  to  him  the  bonds  and  moneys  of  the  plaintiils,  nor 
paid  the  plaintiffs.  On  account  of  his  official  defaults  during  his  second 
term,  he  is  indebted  to  the  plaintiffs  and  other  suitors  in  Court,  in  an 
amount  far  exceeding  his  official  bond. 

On  the  second  April,  1830,  Lang,  Cautey  and  Whitaker,  the  sureties 
for  the  second  time,  finding  that  Evans  was  a  defaulter  to  a  large  amount, 


284  SOUTH    CAROLINA    EQUITY    REPORTS.  [*416 

and  that  his  private  property  would  not  be  adequate  to  make  good  his 
ofBcial  defaults,  procured  Evans  to  make  an  assignment  of  all  his 
*4T'"1  ^'^^tate  to  a  trustee  iu  trust,  first  to  pay  judgments  and  execu- 
-l  tious,  which  were  liens ;  then,  second,  to  pay  Cantey,  Lang  and 
Whitaker,  whatever  they  might  have  to  pay  for  Evans'  defaults  :  third, 
to  pay  the  balance  to  such  of  Evans'  creditors  as  should  exhibit  their 
demands  in  a  year,  and  agree  in  writing  to  take  a  dividend  of  the  surplus. 
The  trustee  accepted  the  trust,  and  received  upwards  of  $7,000  of  Evans' 
private  estate.  With  the  same  view  the  sureties  on  the  12th  March,  1830, 
took  from  Evans  a  bond  for  $20,000,  and  a  confession  of  judgment  thereon, 
and  have  lodged  execution.  The  amount  of  both  the  official  bonds  together 
will  not  be  sufficient  to  satisfy  the  demands  of  the  official  creditors,  and 
at  all  events,  if  the  official  sureties  are  allowed  to  sweep  from  the  official 
creditors  all  Evans'  private  estate,  the  plaintiffs  and  creditors  under  the 
second  bond  will  not  receive  thirty-three  per  cent,  of  their  demands. 
The  bill  is  filed  by  the  plaintiffs  claiming  under  the  second  bond,  to  com- 
pel such  of  Evans'  official  creditors  as  have  a  right  to  demand  payment 
from  either  the  sureties  to  the  first  or  second  bond,  at  their  option,  to 
resort  to  the  first  bond  and  leave  to  the  plaintiffs,  who  have  only  a  single 
fund,  the  benefit  of  the  whole  of  it.  The  prayer  is,  that  all  may  come  in 
and  establish  their  demands,  and  that  the  plaintiffs  may  be  paid  out  of 
the  second  bond.  That  the  assignment  to  the  trustee,  &c.  may  be  set 
aside,  or  that  the  trustee  hold  in  trust  for  the  plaintiffs. 

The  plaintiffs  offered  to  prove  by  a  witness  that  the  property  of  Evans 
was  very  small  when  he  first  went  into  office,  and  that  he  was  dependent 
for  his  support  upon  the  profits  of  his  office.  That  the  property  he 
assigned  in  trust  for  his  sureties,  was  purchased  with  funds  in  his  hands 
as  Commissioner,  paitly  during  his  first  term,  and  partly  during  his  second 
term.     The  Chancellor  overruled  the  testimony. 

Johnston,  Chancellor.  The  object  of  this  bill  is,  1st,  to  set  aside  the 
judgment  confessed  by  Evans  to  the  sureties  to  the  second  bond,  and  the 
assignment  in  trust,  executed  by  him  to  John  M.  De  Saussure  ;  2d  To 
*4181  '^^^^^S®  certain  of  the  claims  *against  Evans,  as  Commissioner,  to 
-I  his  sureties  for  his  first  term  of  office,  instead  of  his  sureties  for 
his  second  term. 

I.  If  the  assignment  stands,  the  judgment  by  confession  must,  for  the 
last  is  less  assailable  than  the  first.  I  shall  therefore  confine  myself  to 
the  assignment.   1  Kent  Com.  420. 

It  is  not  denied  that  a  debtor,  in  failing  circumstances,  may,  by  assign- 
ing his  estate  in  trust,  prefer  one  creditor  over  another,  if  the  assignment 
be  executed  in  good  faith,  and  if  it  destroy  no  existing  lien,  unless  there 
exists,  in  the  country,  a  bankrupt,  or  other  law,  prohibiting  a  preference. 
Seaving  v.  Brinkerhoff",  5  J.  C.  R.  332. 

We  have  no  law  prohibiting  a  bona  fide  preference  of  one  creditor 
over  another.  "  Undue"  preferences  are  prohibited  :  which  word  "  un- 
due" has  been  construed  to  mean  only  fraudulent  preferences.  P.  L.  457  ; 
2  Brev.  137  ;  2  M'C.  R.  366. 

That  liens  did  exist  at  the  term  of  the  assignment,  the  assignment 
itself  recites.  But  I  do  not  perceive  evidence  that  any  of  the  claimants 
before  the  Court  held  liens  at  that  time.     Some  of  them,  the  Insurance 


*418]  COLUMBIA,   JANUARY,    1834.  285 

Company,  for  instance,  had  obtained  orders  that  Evans  should  pay  over 
to  them  moneys  in  his  hands  as  Commissioner;  but  this  formed  no  lien 
on  his  property.  The  only  effect  of  such  orders,  was  to  subject  him  for 
failure  to  obey  them,  to  process  in  personam.  Although,  upon  the  foot 
of  the  orders,  proceedings  might  have  been  instituted  against  him,  which 
would  have  eventuated  in  judgments  which  would  have  bound  his  pro- 
perty, the  orders  themselves  formed  no  liens. 

The  claimants  here,  having  no  liens  at  the  assignment,  cannot  take 
advantage  of  liens  held  by  persons  not  before  the  Court,  to  set  the 
assignment  aside — throw  the  assigned  property  into  assets,  and  thus 
entitle  themselves  to  a  share  of  it. 

The  assignment  not  being  alfected  by  existing  liens,  is  it  affected  by 
any  other  circumstance  ? 

The  first  objection  to  it  is,  that  it  was  fraudulent,  inasmuch  as  it  was 
intended  to  indemnify  his  sureties,  at  the  expense  of  the  very  persons 
whom,  by  the  spirit  of  their  undertaking,  the  sureties  were  bound  to  protect. 
The  arguments  of  counsel  on  this  point  could  not  fail  to  produce  a 
powerful  effect  on  the  Court.  But  however  strong  may  be  the  appear- 
ance of  policy  and  justice,  by  which  they  *are  supported,  it  must  pxciiq 
never  be  forgotten  that  to  the  judicial  tribunals  the  people  have  '- 
not  delegated  a  particle  of  legislative  power.  The  question  for  the  Court 
is,  what  is  the  law  ?  Whatever  the  law  is,  that  is  what  the  sovereign 
authority  has  decided  as  its  rule  of  policy  and  justice.  Whenever  that 
authority  ceases  to  consider  its  rule  as  either  politic  or  just,  it  can  and 
will  change  it.  The  power  of  repeal  or  amendment  is  with  it,  to  be 
exercised  through  the  Legislature,  and  not  with  the  judiciary. 

Whether  it  is  fraud  for  the  surety  of  an  insolvent  ofBcer  to  take  an 
assignment  of  his  property,  for  indemnity,  is  the  precise  questioned  nega- 
tived in  Hooe's  case,  3  Cranch,  73,  a  case  of  great  interest,  and  decided 
upon  full  consideration. 

But  the  assignment  from  Evans  is  attacked  on  its  terms.  The  pro- 
visions objected  to  are — 1st.  The  power  given  to  the  trustee  to  sell  upon 
such  credit  as  be  may  deem  fit.  2d.  The  declaration  that  after  paying 
off  the  existing  liens,  and  indemnifying  the  sureties,  such  creditors  as 
would,  within  a  year  accept,  should  be  paid  rateably. 

It  is  said  that  these  provisions  tend  to  delay  and  hinder  Evans'  credi- 
tors in  their  remedies. 

1.  The  power  given  to  the  trustee  to  sell  upon  such  credits  as  he  may 
deem  best,  is  not  to  be  construed  as  necessarily  intended  to  delay  the  credi- 
tors. It  may  be  and  ought  rather  to  be  considered  as  one  of  the  means  of 
advancing  their  interests,  by  procuring  the  best  price  for  the  property. 
To  say  that  the  trustee  might  abuse  this  power,  is  no  argument  against 
the  trust  itself  If  he  had  attempted  to  act  captiously  or  fraudulently 
under  his  power ;  if  he  had  shown,  in  any  way,  that  he  was  not  governed 
by  a  sound  discretion,  or  that  he  was  disposed  to  defraud  the  creditors, 
who  are  his  cestui  que  trusts,  they  could  have  enforced  an  honest  execu- 
tion of  his  duties.  This  was  a  sufficient  safeguard  to  the  creditors 
against  fraud. 

"It  may  be  said,"  with  truth,  American  Jurist,  Xo,  10,  p.  205,  "that 
every  conveyance,  in  trust  for  creditors,  interposes  a  delay,  and  neces- 
sarily retards  them  in  the  prosecution  of  their  remedies."     But  "  if  any 


286  SOUTH   CAROLINA   EQUITY   REPORTS.  [*419 

creditor  complains  of  this,  the  ground  of  his  complaint  must  be,  that  be 
*A9ai  ^^  deprived  of  the  opportunities  of  securing  *his  whole  debt,  at 
-  the  expense  of  other  creditors  equally  meritorious.  He  is  pre- 
vented from  making  use  of  an  advantage  against  other  creditors,  not 
from  enforcing  his  rights  against  the  debtor  himself. " 

2.  The  declaration  that  the  residue  after  paying  off  liens  and  indemni- 
fying the  sureties,  should  be  distributed  rateably  among  such  creditors 
as  would  accept  within  a  year,  does  not,  in  my  opinion,  vitiate  the 
assignment. 

The  argument  is,  that  it  was  an  attempt  to  drive  the  creditors  into 
terms  :  and  decisions  are  referred  to  in  support  of  this  position.  I  think 
the  decisions  do  not  support  it. 

In  Lord  v.  The  Watchman,  American  Jurist,  No.  16,  p.  284,  "there 
was  a  condition  in  the  assignment,  that  all  creditors  who  became  parties 
to  it,  thereby  released  the  assignor  from  all  further  claim  of  the  demand." 
There  was  an  attempt  to  drive  the  creditors  into  terms.  The  terms  to 
which  they  were  attempted  to  be  driven  was  a  release  of  their  claims, 
and  if  they  did  not  accept  on  that  condition,  they  were  to  be  excluded. 

The  case  turned  upon  the  attempt  to  coerce  the  creditors  to  release, 
lb.  292-4-5. 

In  Hyslop  v.  Clark,  14  Johns.  R.  458,  463,  the  assignment  contained 
a  similar  condition  ;  and  the  judgment  turned  on  it. 

Seaving  v.  Brinkerhoof,  5  Johns.  C.  R.  329,  was  on  a  conveyance 
containing  a  condition  that  creditors  should  not  take  unless  they  released. 
There  existed  liens,  and  the  decision  partly  turned  on  them  :  but  that  has 
no  application  here.  The  condition  compelling  a  release  was  the  prin- 
cipal, and  only  other  ground  of  setting  the  conveyance  aside,  or  enjoining, 
which  is  the  same  thing. 

Mr,  Justice  Ware,  who  decided  Lord  v.  The  Watchman,  says,  the 
assignor  "  had  a  right  to  lock  up  his  property  against  any  one  creditor, 
for  the  benefit  of  all,  and  he  had  a  right  to  determine  the  order  in  which 
his  creditors  should  be  paid  out  of  the  trust  fund."  He  says,  "Lord 
transferred  the  whole  of  his  property  to  Watts  and  Pray,  in  trust  for  the 
purpose,  first,  of  paying  such  creditors  as  should  become  parties  to  the 
deed,  in  the  order  of  preference  established  by  the  assignment.  Thus  far, 
it  is  admitted,  he  had  a  right  to  go. 

In  another  part  of  his  opinion,  the. same  learned  judge  shows  most 
*4.91 1  clistinctiy  the  ground  upon  which  he  set  the  assignment,*  in  that 
-'  case,  aside.  "A  creditor,"  says  he,  "who  is  postponed,  cannot 
avoid  the  conveyance,  because  he  may  take  what  the  favored  creditors 
leave  for  him,  and  still  pursue  his  remedy,-  for  what  remains,  against  the 
debtor."  But  "  the  debtor  cannot  compel  a  creditor  to  receive,  in  satis- 
faction for  his  debt,  any  thing  short  of  the  full  amount  due." 

Mr.  Justice  Van  Ness,  in  delivering  the  opinion  of  the  Court  in  Hyslop 
V.  Clark,  takes  his  ground  thus,  "  One  object  evidently  was  to  coerce  the 
creditors  to  acquiescence  in  the  terms  offered  to  them."  The  language 
held  to  them  is,  "if  you  will  release  your  debts,  you  may  participate."  &c. 

Now,  for  anything  contained  in  Evans'  assignment,  every  one  of  his 
creditors,  after  accepting,  would  have  been  still  at  liberty  to  pursue  Evans 
and  any  other  property  he  then  had  or  might  subsequently  acquire. 
Where  then  is  the  contrivance  to  drive  any  of  them  to  terms  ? 


*421]  COLUMBIA,   JANUARY,   1834.  287 

The  postponement  of  the  claimants  here  to  the  liens  and  to  the  claims 
of  the  sureties  was  lawful.  They  were  offered  a  fair  chance  and  an  equal 
chance  after  that,  if  they  would  accept,  and  there  was  no  condiiion 
annexed  to  the  acceptance.  If  any  of  them  chose  to  accept,  he  could 
still  retain  all  his  remedies  for  any  balance  which  the  assigned  property 
left  unpaid.  If  any  of  them  chose  not  to  accept,  can  he  make  it  a  ground 
to  impeach  the  assignment,  that  by  reason  of  others  accepting  while  he 
stood  back,  he,  himself,  and  not  Evans,  gave  those  others  a  preference 
over  him  ?     I  think  not. 

3.  It  is  objected  that  the  assignment  is  silent  as  to  what  is  to  be  done 
with  any  overplus,  that  might  exist,  after  paying  the  liens,  the  sureties 
and  the  accepting  creditors — that,  therefore,  as  to  such  overplus,  a  trust 
results  to  Evans,  which  is  a  preference  of  himself  over  his  creditors,  and 
avoids  the  assignment. 

What  results  to  Evans,  and  in  what  case  is  it  to  result  ? 

By  the  terms  of  the  assignment  any  creditor  is  allowed  and  invited  to 
come  in,  and  take  without  condition  of  the  assets,  until  his  debt  be  fully 
paid,  or  the  assets  exhausted.  If  the  assets  do  not  hold  out,  there  is 
nothing  to  result  to  Evans.  If  there  is  an  overplus,  the  creditors  who 
have  been  paid  cannot  complain.  The  only  case  in  which  anything  could 
^result  to  Evans,  without  paying  every  creditor  or  exhausting  the  r^jc  i^c, 
assets,  would  be  when  a  creditor,  to  v/hom  the  property  had  been  L 
unconditionally  surrendered,  with  an  invitation  to  accept  his  whole 
debt  or  his  just  proportion  of  the  assets,  had  defrauded  himself  by  obsti- 
nately refusing  to  be  paid. 

But  an  assignment  to  be  set  aside  must  be  fraudulent  on  the  part  of 
the  maker.  The  person  seeking  to  set  it  aside  must  show  fraud  in  that 
quarter.  It  is  not  sufficient  merely  that  he  has  been  defrauded,  if  it  turn 
out  that  all  are  innocent  of  that  fraud  but  himself.  All  that  a  creditor 
has  a  right  to  expect  of  the  law,  is,  that  it  secure  him  a  fair  chance  to  be 
paid,  and  a  protection  against  the  frauds  of  others.  In  this  case,  the 
assignment  gave  each  creditor  a  fair  chance,  and  no  one  has  practiced 
any  fraud  on  the  creditor. 

But  it  by  no  means  follows  from  what  I  have  said,  that  if  there  were  any 
surplus  in  "the  hands  of  the  trustee,  the  Court  would  permit  that  to  go  to 
Evans,  in  preference  to  any  creditor  who  had  not  accepted.  All  that  I 
have  said  is,  that  such  creditor,  in  such  case,  cannot  overturn  the  assign- 
ment. 

If  it  were  not  clearly  given  up  that  the  trust  property  has  fallen  short 
of  the  liens  and  the  indemnity  of  the  sureties,  I  would  order  the  trustee 
to  account  for  the  assets,  in  order  to  decree  payment  to  the  creditors 
here,  out  of  the  surplus.  But  it  is  conceded  there  is  no  surplus.  The 
assignment  and  confession  of  judgment  must  stand. 

II.  The  second  matter  to  be  considered  is,  whether  any  of  the  claims 
are  chargeable  to  the  sureties  of  Evans'  first  term  of  office. 

Let  us  consider  the  claims  which  it  is  contended  should  be  so  charged, 
separately. 

1.  The  claim  of  the  Charleston  Fire  and  Marine  Insurance  Comi)any. 
The  fund  was  received  and  partly  disbursed,  during  the  first  term  of 
office,  leaving  a  balance  in  Evans'  hands  during  that  term. 

On  the  10th  June,  1825,  and  during  the  first  term,  this  Court  in  the 


288  SOUTH   CAROLINA   EQUITY   REPORTS.  [*422 

case  (John  and  James  Chestnut  v.  The  Charleston  Fire  and  Marine 
Insurance  Company,  and  others,)  in  which  the  fund  had  been  paid  into 
Court,  "  ordered  that  *the  funds  now  in  the  hands  of  the  commis- 
-^  sioner,  and  such  as  may  come  into  his  hands,  before  the  final 
report,  be  paid  over  to  the  Fire  and  Marine  Insurance  Company — subject 
to  the  rights  of  the  contesting  claimants,  and  subject  to  the  further 
order  of  this  Court." 

There  is  no  evidence  that  tbe  money  was  ever  demanded  from  Evans  by 
the  Insurance  Company. 

The  principles  of  Wright  v.  Hamilton,  2  Bailey  R.  51,  are  as  appli- 
cable to  a  commissioner  as  to  a  sheriff".  That  case  is,  therefore,  an 
authority  that  a  right  of  action  could  not  arise  to  the  Insurance  Com- 
pany against  Evans,  until  demand  of  payment.  If  he  was  not  liable 
neither  "are  his  sureties.  But  if  no  action  could  have  been  maintained 
against  him,  it  was  because  he  had  committed  no  official  default. 

Then  up  to  the  last  day  of  his  first  term,  he  was  guilty  of  no  default  as 
respects  this  fund,  unless  it  was  misconduct  to  perform  his  duty,  by 
receiving  it  and  holding  it  until  demand. 

On  the  last  day  of  his  first  term  it  was  his  duty  to  turn  it  over  to  his 
successor  in  office,  (Act  of  Assembly,  1823.)  But  he  was  that  successor 
himself.  He,  by  this  succession,  became  debtor  himself,  and  creditor  of 
himself.  The  person  bound  to  pay,  was  then  also  the  person  to  receive. 
Did  he  demand  of  himself  ?  What  must  have  been  the  answer  he  gave 
himself?  "The  money  is  in  your  own  pocket.  You  are  paid.  I  have 
turned  over  the  money  to  you.  Give  me  a  receipt:  or  if  you  cannot  do 
that,  charge  yourself,  in  your  books,  as  my  successor,  with  the  fund." 

Now,  if  he  had  the  money  as  successor,  and  being  in  office  as  successor, 
failed  to  charge  himself  with  it,  was  not  that  a  default  in  his  second  term  ? 
And  are  the  sureties  for  the  first  term  to  be  charged,  ex  pout  facto,  for 
that  ?  Are  they  to  be  charged  for  the  misconduct  of  the  principal  of 
another  set  of  sureties  ? 

It  appears  to  me  the  decision  in  Waukford's  case,  1  Salk.  229  ;  3  lb. 
262 ;  and  in  Cobb's  case,  2  Bailey,  60,  go  to  the  discharge  of  the  sureties 
for  the  first  term. 

2.  The  claims  of  the  children  of  Willie  Yaughan  is  still  less  tenable. 
*j.-'>4i       *There   was   no  order  to  pay  out  the  fund  received  by  Evans 

-'  during  his  first  term.     There  was  no  demand.     Nor  could  any 
payment  have  been  made  to  the  children,  they  being  infants. 

3.  Edward  Newhall's  claim. 

The  fund  was  received  during  the  first  official  term  :  no  order  made  to 
pay  out — nor  any  demand  until  the  second  term.  Of  course,  upon  the 
principles  I  have  applied  to  the  foregoing  claims,  this  cannot  be  charged 
to  the  first  set  of  sureties. 

4.  Tim.  and  F,  D wight's  claim  stands  on  the  same  ground  as  New- 
hall's. 

5.  So,  also,  does  Thomas  Scott's. 

6.  John  Hudson's  claim. 

The  fund  was  received  during  the  first  term  of  office  :  no  order  to  pay 
out,  nor  demand  made.  The  first  set  of  sureties  are  not  liable  for  this 
claim. 

7.  H.  M.  and  G.  Archie's  claim. 


*-424]  COLUMBIA,   JANUARY,   1834.  2S9 

A  tliousand  dollars  were  raised  during  the  first  term,  and  ordered  to  be 
invested.  Evans  oidy  invested  eijrht  hundred  ;  vvliich  he  receivei]  back 
again  in  the  second  terra.  It  is  not  contended  that  the  first  sureties  are 
liable  for  the  eight  hundred  dollars.  But  it  is  contended  that  tliej'  are 
responsible  for  the  two  hundred,  on  account  of  Evans'  defaidt  in  not 
complying  with  the  order  to  invest  them  ;  and  so  they  are  ;  but  not  under 
the  charges  in  this  bill.  No  such  default  was  alleged,  and  the  j^roof 
must  be  rejected :  1  Br.  C.  C.  94 ;  14  J.  K.  501  ;  Gilb.  219  ;  6  J.  R.  543  ; 
Mitf.  PI.  34  ;  2  Atk.  182;  2  Ves.  225  ;  11  Ves.  240. 

8.   The  claim  of  Lene  Dubose's  children. 

Carter,  who  was  Evans'  predecessor  in  ofSce,  was  ordered  to  take 
charge  of,  and  did  take  charge  of  these  children's  slaves.  When  Evans 
came  into  office,  he  acted  as  Carter  had  acted,  but  without  special  order. 

The  slaves  were  hired  out,  and  notes  taken  for  the  hire,  which  notes  fell 
due  the  20th  March,  1823,  in  Evan's  first  term.  There  is  no  evidence  wh-^n 
these  notes  were  paid,  but  they  were  paid,  and  the  principal  has  been  paid 
out.  A  claim  is  now  made  for  the  interest  which  accrued  from  the  maturity 
of  the  notes,  until  the  principal  was  paid  out.  *  And  it  is  contended  r^^: ,  9,- 
that  the  first  set  of  sureties  is  liable  for  it — although  there  was  no  L 
order  to  pay  it,  nor  demand  of  it,  during  the  first  term  of  office  ;  neither 
was  there  any  one  to  receive  it,  the  children  being  minors  during  the 
whole  of  that  term. 

Although  I  think  Carter's  acts  in  relation  to  the  children's  property 
were  in  the  line  of  his  duty,  as  Commissioner,  and  that  Evans  succeeding 
him  in  office,  succeeded  to  his  duties ;  yet  there  is  no  default  proved  in 
his  first  term,  and  his  sureties  for  that  term  are  not  responsible  for 
this  claim. 

9  The  claim  of  the  Commissioners  of  the  Poor  on  account  of  John 
Craven. 

The  proceedings  relating  to  this  matter  are  very  extraordinary. 

Craven,  a  lunatic,  had  been,  from  1812  to  1818,  under  the  care  of  the 
Commissioners  of  the  Poor.  In  1818,  he  obtained  (without  the  inter- 
vention of  a  committee,  as  it  would  appear,)  a  decree  in  this  Court ; 
under  which  the  Commissioner  of  the  Court,  who  preceded  Evans,  sold  a 
tract  of  land,  for  his  benefit,  at  $1120  dollars.  The  Commissioner  sup- 
ported him  on  the  avails  until  Evans'  election.  Then  Evans  took  charge 
of  the  lunatic  and  the  fund,  and  supported  him  on  the  latter  until  his 
death ;   which  happened  in ,  during  Evans'  first  term. 

After  the  lunatic's  death,  and  during  his  own  first  term  of  office,  Evans 
reported  to  the  Court,  that  the  funds  left,  belonging  to  the  lunatic,  were, 
in  cash,  $176  06,  and  in  bonds,  besides  interest,  $273. 

He  also  reported  that  the  Commissioners  of  the  Poor  had  a  demand 
for  $573  33,  to  the  payment  of  which  he  recommended  that  the  fund, 
after  deducting  the  costs  of  Craven's  suit,  should  be  applied,  so  far  as  it 
would  go.  This  was  ordered,  although  there  does  not  appear  to  have 
been  any  administration  to  Craven  taken  out. 

The  costs  of  Craven's  suit  left  but  $131  of  the  fund  for  the  Commis- 
sioners of  the  Poor,  from  which  it  would  seem  that  Craven's  capital  was 
very  much  trenched  upon. 

The  Commissioners  of  the  Poor  now  demand  the  $131  from  Evans' 
Vol.  I.— 19 


290  SOUTH   CAROLINA   EQUITY   REPORTS.  [*425 

-.  first  sureties,  witliout  ever  having  demanded  *the  money  the  first 
-I  term  of  office.     No  default  was  committed  during  the  first  term, 
and  the  sureties  for  it  are  not  responsible. 

There  is  no  ground,  as  respects  the  assignment,  or  as  against  the 
sureties,  for  the  bill  in  this  case  ;  and  it  must  be  dismissed  as  against  all 
the  defendants,  but  Evans.  As  against  him  it  will  be  retained  until 
further  order. 

The  plaintiflfs  move  to  reverse  this  decree,  and  that  the  relief  prayed 
by  the  bill  be  granted  ;  upon  the  following  grounds  : 

1.  Because  the  sureties  in  the  first  Ijond  are  liable  for  all  moneys 
received  by  the  Commissioner  during  that  terra,  unless  they  show  that 
the  same  were  paid  over  to  his  successor. 

2.  Because  the  fact  that  Evans  was  his  own  successor,  does  not  dis- 
charge the  sureties  to  the  first  bond,  unl'^ss  by  some  schedule  signed  by 
the  Commissioner  at  the  expiration  of  his  first  term,  and  filed  in  his 
office,  he  had  acknowledged  the  amount  then  in  his  hands  and  ready  to 
be  paid  over  ;  and  by  a  receipt  endorsed  thereon,  when  he  was  re-elected, 
bad  admitted  his  receipt  of  those  sums  under  his  second  terra. 

3.  Because  the  receipt  of  raoney  during  the  first  term,  charges  the 
sureties  ;  and  the  fact,  that  when  called  upon  he  is  not  able  to  pay,  is 
conclusive  evidence  of  default  during  that  term,  until  the  contrary  is 
made  to  appear. 

4.  Because  an  order  to  pay  over,  fixes  the  default  during  the  first 
term,  though  no  demand  was  proved  to  have  been  made, 

5.  Because  the  failure  to  invest  money  ordered  to  be  invested,  consti- 
tuted an  immediate  default, 

6.  Because,  where  bonds  were  lodged  in  the  Commissioner's  han-ds 
during  his  first  terra,  his  first  sureties  are  liable,  unless  they  produce  the 
bonds  or  the  raoney. 

7-  Because  the  Court  refused  testimony  which  was  offered  to  prove  a 
default  during  the  first  term,  by  showing  that  Evans  converted  the  funds 
in  his  hands  to  his  own  use,  during  his  first  term,  and  because  the  same 
evidence  was  ottered  to  assail  the  assignment. 
*49-l       ^-   *i>ecause  ihe  assignment  made  in  trust  for  the  sureties  ought 

■^  -'  to  be  set  aside, 

Wm.  F.  De  SausHKre,  in  support  of  these  grounds,  argued,  1st,  That 
the  sureties  to  the  first  bond  were  liable  for  all  moneys  received  by  the 
Commissioner,  during  that  term  ;  that  it  was  the  receipt  of  the  moneys, 
and  not  the  neglect  or  refusal  to  pay  over,  which  fixed  the  liability  of  the 
sureties  ;  and  where  there  has  been  a  demand  made  and  a  refusal  to  pay 
over,  the  default  will  have  relation  back  to  the  time  when  the  money  was 
received.  At  all  events,  the  refusal  of  the  Commissioner  to  pay  out 
money  according  to  the  order  of  the  Court,  was  evidence  of  a  conversion 
during  that  terra,  and  his  neglect  to  invest  funds  ordered  to  be  invested, 
was  a  default  in  the  first  term,  and  were  violations  of  the  orders  of  the 
Court  prescribing  these  duties,  which  constituted  breaches  of  the  condi- 
tion of  his  bond,  for  which  his  securities  of  that  terra  were  liable.  2.  That 
the  assignment  was  void,  as  well  from  its  terras,  which  were  intended  to 
coerce  creditors  to  a  compromise,  as  on  grounds  of  public  policy.  That 
the  community  have  the  riglit  to  look  as  well  to  the  private  fortune  of  a 


*427] 


COLUMBIA,    JANUARY,    1834.  O9I 


public  officer,  as  a  security  for  liis  official  conduct,  as  to  his  bond.     And 
he  cited  and  relied  on,  the  American  Jurist,  No.  10,  p.   2S4;   10  Johns 
Rep.  459;   20  Johns.  Rep.  442;   4  Dallas;   5  Johns.   Ch.   Rep    329 
332. 

BJanding,  contra.  As  to  the  question,  whether  the  securities  to  the 
first  bond  were  liable — argued,  that  the  breach  assigned  was  that  Evans 
had  received  money  which  he  had  not  paid  over  according  to  the  condi- 
tion of  his  l)ond  ;  and  that  there  could  be  no  such  breach  when  the 
creditors  stood  by,  and  did  not  set  up  their  claims  until  the  second  term. 
As  to  the  funds  in  his  hands  during  the  first  term,  which  were  ordered  to 
be  paid  over,  no  cause  of  action  accrued  until  after  demand;  Hamilton 
V.  Wright,  2  Bailey,  51 ;  and  State  v.  Martin,  Columbia,  May  Term, 
1830.  And  as  regards  the  order  to  invest  funds,  a  failure  to  comply 
with  it  could  only  make  the  sureties  to  the  first  bond  liable  for  the 
interest.  Evans  was  his  own  successor,  and  the  fund  remaining  in  his 
hands  until*  the  second  term,  his  sureties  to  that  term  are  liable,  r^ic^o^ 
As  regards  the  assignment,  he  insisted  that  there  was  no  ground  L 
on  which  it  could  be  impeached.  It  was  executed  bona  fide  for  the 
benefit  of  his  creditors,  of  whom  were  his  sureties  ;  and  he  had  a  perfect 
legal  and  equitable  right  to  give  preferences  among  his  creditors,  and 
indeed  he  might  have  paid  in  $10,000,  and  discharged  his  bond.  There 
is  nothing  in  the  terms  of  the  assignment  to  prewnt  creditors  from  pro- 
ceeding against  him,  or  to  compel  them  to  compromise  their  claims  ; 
and,  finally,  if  the  assignment  should  be  set  aside,  the  securities  are 
protected  by  the  judgment  confessed  to  them. 

Hakper,  J.  It  will  be  necessary  to  add  very  little  to  the  very  satis- 
factory reasoning  of  the  Chancellor,  on  the  several  points  involved  in  the 
case.  The  four  first  grounds  of  the  motion,  together  with  the  sixth, 
maybe  considered  together.  If  it  were  shown  that  the  Commissioner 
had  wasted  or  converted  to  his  own  use  the  funds  officially  in  his  hands, 
as  by  purciiasing  property  with  a  bond  taken  by  him  as  Commissioner, 
during  his  first  term  of  office,  I  should  think  the  sureties  of  that  term 
ought  to  be  answerable.  But  in  the  absence  of  any  testimony  on  the 
subject,  the  presumption  is,  that  he  retained  the  funds,  and  that  they 
were  in  liis  hands  as  his  own  successor.  Such  seems  to  be  the  natural 
inference,  and  I  think  it  is  sustained  by  the  authority  of  the  cases  to 
which  the  Chancellor  refers.  Such  was  the  opinion  of  the  presiding 
judge  in  the  case  of  the  State  v.  Martin, (a)  and  it  is  supported*  r^^oQ 
in  some  degree  by  the  case  of  The  Treasurers  v.  Taylor,  2  Bailey, 

(a)  Tbe  State  v.  Martin,  Commissioner  and  sureties— Before  Mr.  O'Neall,  at 
York,  Spring  Term,  1830.  This  was  an  action  on  the  official  bond  of  the  Commi.<- 
sionei'  in  Equity  for  bis  second  term  of  office,  to  recover  money  received  by  him 
and  not  paid  over.  The  jury  found  a  special  verdict,  which  stated  among;  other 
things,  that  a  part  of  the  money  for  which  the  action  was  brought  was  received  by 
the  Commissioner  during  his  first  term,  but  was  not  ordered  to  be  paid  over  until 
during  the  .^econd  term;  and  one  of  the  questions  made,  was  whether  the  suieties  t) 
the  second  bond  were  liable  for  the  money  received  during  the  first  term.  The 
presiding  Judge  awarded  judgment  for  the  plaintiff;  and  an  appeal  being  taken,  -n 
his  report  of  the  case,  on  this  point  he  remarks:  "Let  it  be  admitted  that  he  re- 
ceived the  whole  of  the  money  during  his  former  term  and  that  he  received  part  of 


292  SOUTH    CAROLINA    EQUITY    REPORTS.  [*429 

524.  What  other  conclusion  could  you  draw  ?  By  what  data  could  you 
fix  a  default  during  the  first  term  of  ofBce  ?  And  what  is  the  evidence 
here  of  default  during  the  first  term  ?  The  strongest  cases  are  those  in 
which  the  Commissioner  was  ordered  to  pay  over  the  funds.  These 
orders  were  an  authority  to  pay  over  the  money,  and  made  it  his  duty  to 
do  so,  if  it  were  demanded.  Certainly,  however,  it  did  not  impose  on 
him  the  duty  of  seeking  out  the  parties  wherever  they  might  be  found, 
and  making  a  tender.  According  to  the  case  of  Wright  v.  Hamilton,  2 
Bailey,  51,  there  was  no  default  and  no  cause  of  action  against  Evans, 
till  the  money  was  demanded  and  he  refused  to  pay  it,  and  no  demand 
was  shown  during  the  first  term.  Besides,  as  observed  in  argument,  by 
their  delay  to  make  any  demand  of  the  sureties  of  the  first  term,  and  by 
establishing  their  demands  against  the  sureties  of  the  second  term,  the 
creditors  have  concluded  themselves.  Tf  Evans  had  the  funds  in  his 
hands  during  his  second  terra  of  office,  if  he  did  pay  over  to  himself  as 
his  own  successor,  the  sureties  of  the  second  term  were  liable,  and  if  they 
were  Habile,  those  of  the  first  terra  could  not  be. 

The  fifth  ground  of  appeal  is,  because  the  failure  to  invest  money 
ordered  to  be  invested,  constituted  an  immediate  default.  I  suppose  it 
was  so ;  yet  it  does  not  follow  that,  for  that  the  Commissioner  was  liable 
to  the  extent  of  the  money  ordered  to  be  invested.  He  might  be  liable 
to  the  parties  for  the  interest  which  v/ould  have  been  made  if  the  fund 
^  .„„-,  had  been  properly  invested  ;  but  no  such  claim  is  made  in  *this 
-I  case.  If  he  neglected  to  invest,  the  money  remained  in  his  hands, 
and  the  same  presumption  arises  with  respect  to  that,  as  to  any  other 
money  in  his  hands. 

The  seventh  ground  has  been  abandoned  since  the  hearing ;  the 
counsel  having  become  satisfied  that  the  testimony  which  was  offered 
could  not  have  been  given. 

On  the  eighth  ground,  it  is  not  necessary  to  add  anything  to  the  reason- 
ing of  the  Chancellor.  The  assignment  was  only  impugned  in  argument, 
by  supposing  that  it  was  intended  to  coerce  creditors  by  requiring  them 
to  release  part  of  their  demand,  before  they  could  have  the  benefit  of  it. 
But  this  was  plainly  a  misconception.  The  assignment  is  for  the  benefit 
of  creditors  who  shall  consent  to  accept  (not  accept  and  release)  within 
a  year ;  and  this  was  proper,  that  the  trustee  might  know  for  what 
creditors  he  was  to  provide. 

Pe7^  Johnson  and  O'Neall,  Js.  We  concur  generally  in  the  views 
expressed  in  this  opinion,  but  we  are  of  opinion  that  the  neglect  of  the 


it  in  his  own  debt,  what  would  be  the  effect  of  it?  Upon  his  entering  on  his  second 
term,  he  had  so  much  money  belonging  to  the  comphiinants  in  the  case  in  Equity. 
He  was  ordered  to  pay  it  out  in  his  second  term,  and  for  his  failing  to  do  so,  his 
securities  to  his  second  bond  would  appear  to  be  answerable  for  a  breach  of  duty. 
See  M'Dowell  v.  Caldwell,  12  M'C  Ch.  43  ;  Hall  v.  Hall,  lb.  269.  During,  however, 
his  second  term,  on  the  oOth  May,  1826,  the  Commissioner  accounted  with  the 
executors  and  legatees  of  Feemster  (for  whose  benefit  this  suit  is  brought)  and 
admitted  the  balance  of  $329  48,  to  be  then  in  his  hands  as  Commissioner,  for  their 
use  and  benefit.  This  admission  is  conclusive  on  the  defendants,  and  they  are 
bound  for  the  amount  thus  admitted  to  be  in  his  hands,  with  interest  thereon."  The 
judgment  of  the  Circuit  Court  was  affirmed,  but  the  case  was  decided  on  other 
grounds.  R. 


*430]  COLUMBIA,  JANUARY,   1834.  293 

Commissioner  to  pay  over  or  invest  money  as  ordered  by  the  Court,  was 
a  breach  of  the  condition  of  the  bond,  and  that  the  application  for  sucli 
an  order  ought  to  be  regarded  as  prima  facie  evidence  of  a  demand  ;  and 
that  the  sureties  to  the  bond  of  the  term  in  which  such  order  was  made 
are  liable :  and  the  decree  of  the  Circuit  Court  is  ordered  to  be  accord- 
ingly so  modified.     In  other  respects,  it  is  affirmed. 


Charles  Jugnot  vs.  Benjamin  Hale,  and  others. 

By  the  Act  of  1825,  p.  19,  an  injunction  granted  by  the  Commissioner 
continues  in  force  no  longer  than  the  coming  in  of  the  answer ;  after 
which  the  Chancellor  may  in  his  discretion  grant  a  new  injunction,  or 
make  such  other  "  order  on  the  bill  and  answer  as  the  case  may  require ;" 
and  this  Court  will  not  attempt  to  control  him  in  the  exercise  of  this  dis- 
cretion, but  upon  a  plain  case  of  obvious  error  or  mistake. 


♦Sinclair  and  Kiddle,  Assignees,  vs.  A.  B.  Moore  and  Chas.  r*ioi 
Moore,  Administrators  of  Thos.  Price,  deceased,  ^ 

The  Court  of  Appeals  in  Chancery  has  the  right  to  order  an  issue  at  law,  and  it  has 
exercised  this  right  ever  since  its  organization.  [*440] 

The  Court  ordering  the  issue,  has  the  power  of  deciding  on  a  motion  for  a  new  trial ; 
but  unless  the  decision  upon  the  verdict  in  issue  involve  a  reversal  of  some 
previous  decree  in  the  case,  the  Chancellor  on  the  Circuit  should  hear  and  deter- 
mine a  motion  for  a  new  trial  of  an  issue  ordered  by  the  Appeal  Court.  [*44l2] 

According  to  the  practice  of  this  Court,  if  a  party  except  to  the  Commissioner's 
Report,  and  some  of  his  exceptions  are  sustained  and  some  overruled,  and  the 
case  is  sent  back  by  the  Chancellor  to  the  Commissioner,  he  may  at  once  appeal 
to  this  Court,  or  wait  until  there  is  a  final  decree  of  confirmation,  and  then  bring 
up  the  whole  case.  [*444] 

Spartanburgh.  The  bill  in  this  case  wa^s  filed  by  the  assignees  of 
George  Keenan,  against  the  defendants,  as  administrators  of  Thomas 
Price,  for  an  account  of  Keenan's  estate, — charging  that  Price  and  Kee- 
nan, having  been  concerned  together  in  trade  for  many  years,  Price, 
before  and  at  the  time  of  his  death,  had  in  his  possession  funds  and  mer- 
chandise of  Keenan's,  not  accounted  for ;  and  that  they  had  colluded  for 
the  purpose  of  defrauding  Keenan's  creditors.  The  administrators  set 
up,  by  way  of  discount  to  the  plaintiff's  demand,  a  bond  and  mortgage 
from  Keenan  to  Price,  for  $6442 ;  in  reply  to  which  the  assignees  pro- 
duced a  receipt  against,  or  defeasance  of  the  bond,  and  conteiided  that 
the  bond  and  mortgage  were  merely  colorable,  without  consideration, 
and  intended  to  screen  Keenan's  property  from  his  creditors;  but  this 
instrument,  the  defendants  insisted,  was  not  genuine. 

On  the  case  coming  up  before  Chancellor  Thompson,  he  ordered  an 
issue  at  law,  to  try  whether  the  alleged  defeasance  was  genuine,  and  of 
full  force  at  Price's  death.     The  jury  found  for  the  defendants  on  this 


294  SOUTH    CAROLINA    EQUITY    REPORTS.  [*431 

issue  ;  but  tlie  Court  of  Appeals  at  December  Term,  1830,  granted  a  new 
trial,  and  at  the  same  time  enlarged  the  order  for  the  issue,  so  as  to  em- 
brace the  question,  whether  the  bond  and  mortgage  were  for  a  valuable 
consideration.  The  issue  was  tried  before  Mr.  Justice  O'Neall,  at  Fall 
Term,  1832,  and  the  jury  found  that  "the  bond  and  mortgage  are  not 
colorable,  but  on  valuable  consideration,  and  that  the  signature  'Thomas 
Price'  to  the  paper  called  a  defeasance,  is  not  the  handwriting  of  the  said 
Thomas  Price." 

The  Commissioner,  meanwhile,  had  made  up  his  report  on  the  accounts. 
It  was  excepted  to  by  both  parties,  and  their  exceptions  argued  before 
Chancellor  De  Saussure,  at  June  Term,  1830,  from  whose  decree  thereon 
both  parties  appealed,  and  this  Court  reformed  the  decree,  and  settled 
*iqc)-i  the  principles  involved  in  the  points  then  made.  After  the  *last 
-•  trial  of  the  issue,  the  Commissioner  reformed  his  report  according 
to  Chancellor  De  Sanssure's  decree,  and  the  decision  of  the  Appeal  Court, 
and  allowed  the  defendants  credit  for  the  amount  of  the  bond. 

The  case  came  before  Chancellor  Johnston,  at  June  Term,  1833,  on 
exceptions  to  the  Commissioner's  Report,  by  both  parties,  and  on  a 
motion  by  the  plaintiffs  for  a  new  trial  of  the  issue,  on  several  grounds. 

Johnston,  Chancellor.  The  verdict  rendered  to  me  is  not  0]ien  to 
my  examination,  being  grounded  on  an  issue  ordered  by  another  Court. 
That  Court,  if  it  had  authority  to  order  the  issue,  (having  ordered  it  for 
the  satisfaction  of  its  own  conscience,  and  not  for  that  of  this  Court,)  is 
alone  competent  to  decide  whether  the  verdict  is  sufficient  to  remove  the 
scruples  which  occasioned  the  order. 

If  it  was  competent  for  me  to  examine  the  verdict,  I  am  free  to  say 
that  it  is  as  satisfactory  as  any  verdict  could  be,  rendered  by  a  jury 
having  before  them  only  part  of  the  materials  which,  from  the  nature  of 
the  case,  bore  as  evidence  upon  the  point  at  issue. 

The  Court  of  Appeals,  in  conceding  that  the  existence  or  want  of  con- 
sideration for  the  bond  and  mortgage  of  the  3d  of  May,  1819,  might 
influence  the  opinion  of  the  jury  upon  the  question,  whether  the  account- 
able receipt  of  the  same  date,  called  a  defeasance,  Avas  signed  by  Price, 
admits  in  substance,  that  the  consideration  of  that  bond  and  that  mort- 
gage is  matter  of  evidence  on  the  question  last  mentioned.  Tlius,  if  the 
direct  evidence  as  to  the  subscription  to  the  receipt,  was  equally  balanced, 
and  under  these  circumstances  it  was  proved  that  the  boncl  and  mortgage 
were  upon  full  consideration,  it  would  be  difficult  to  believe  the  receipt 
was  genuine  ;  since  that  would  inqily  that  Price  had  signed  a  paper 
giving  away  upwards  of  six  thousand  dollars  of  his  own  money.  But  if, 
under  the  same  circumstances,  it  was  established  that  the  bond  and  mort- 
gage stood  u]ion  no  consideration,  the  mind  would  conclude  it  more 
probable  that  Price,  losing  nothing  I)y  it,  might  have  signed  the  receipt. 
The  evidence,  therefore,  touching  the  bond  and  mortgage,  was  circum- 
*4331  ^t^"^'^'  testimony  as  to  the  genuineness  of  the  *receipt  for  them. 
-^  If,  therefore,  there  ever  was  any  propriety  in  sending  the  latter 
point  to  a  jury,  the  evidence  respecting  the  consideration  of  the  bond  and 
mortgage  ought  then  to  have  been  received  ;  whereby  the  parties  would 
have  saved  the  expense  and  delay  of  a  second  trial. 


*433]  COLUMBIA,  JANUARY,    1834.  295 

But  I  do  not  believe  a  jury  could  have  ever  inquired  profitably  into 
the  consideration  of  the  bond  and  mortgage.  How  could  they  have 
ascertained  the  consideration  of  them,  without  examining  the  accounts 
from  beginning  to  end?  Bat  this,  a  Court  of  law,  from  its  structure, 
could  not  well  do  :  and  hence  a  Court  of  law  is  never  required  or  per- 
mitted to  examine  matters  of  account,  except  when  they  spring  up  col- 
laterally to  a  matter  of  which  that  Court  has  original  jurisdiction  ;  and 
then,  only  from  the  necessity  of  the  case. 

Now,  the  accounts  here  were  never  left  to  the  jury,  but  were  all  disposett 
of  and  sent  back  to  the  Commissioner  in  the  same  decision  which  ordered 
the  issue  on  the  accountable  receipt :  nor  did  the  commissioner  make  up 
the  accounts  under  the  appeal  decree,  until  after  the  jury  rendered  their 
verdict. 

But,  inasmuch  as  the  accounts,  as  made  up,  upon  principles  which  have 
been  settled  both  here  and  in  the  Court  of  Appeals,  from  the  best  exami- 
nation I  have  been  able  to  give  them,  show  a  probability  that  the  bond 
and  mortgage  were  executed  upon  consideration,  I  should,  if  the  verdict 
were  returnable  to  this  Court,  agree  with  it.  I  should  say  that  the  bond 
and  mortgage  were  valid  ;  and  that  the  accountable  receipt  for  them  was 
a  forgery  ;  indeed,  as  to  the  latter,  I  think  there  is  greatly  preponderating 
evidence  of  the  forgery,  independently  of  the  consideration  upon  which 
the  former  stands — so  ])reponderating  that  I  should  have  decided  without 
subjecting  the  parties  to  the  expense  and  delay  of  an  issue  at  all  ;  in 
which  decision,  to  be  sure,  I  should  not  have  neglected  the  light  winch 
the  accounts  and  the  bond  and  m^ortgage  would  have  afforded  me. 

Being  convinced  that  so  far  from  being  bound,  I  am  not  at  liberty  to 
take  cognizance  of  the  verdict  rendered  upon  the  issue  ordered  l)y  the 
Court  of  Appeals,  while  on  the  *other  hand,  I  am  bound  to  r-jj^Aot 
decide  on  the  accounts  as  made  up  by  the  Commissioner,  that  •- 
part  of  the  case  having  been  recommitted  to  this  Court,  with  directions 
pointing  out  the  errors  to  be  avoided  ;  I  cannot  express  my  embarrass- 
ment ;  for  it  is  necessary  to  a  full  decision  on  the  accounts  that  the 
matters  of  the  bond,  mortgage,  and  accountable  receipt,  be  taken  into 
consideration  ;  yet  they  constitute  equities  reserved  in  the  Court  of 
Appeals.  I  felt  very  much  the  same  difficulty  as  in  Fraser  and  Vaux, 
(Charleston,  1833,)  where  the  equities  were  not  remitted  by  the  Court  of 
Appeals,  but  held  in  their  own  hands  for  decision,  while,  to  satisfy  them- 
selves, they  ordered  certain  inquiries  by  the  Commissioner.  In  that  case, 
I  could  not  decide  on  his  report  when  it  came  in. 

In  this  condition,  what  am  I  to  do  ?  The  order  for  the  issue  is  not 
one  of  this  Court,  so  that  if  I  were  satisfied  the  jury  were  wrong,  I  could 
not  supersede  it,  either  for  the  purpose  of  deciding  for  myself  on  evidence, 
or  for  the  purpose  of  ordering  another  trial,  either  on  the  same  terms  or 
others.  I  do  not  know  what  the  doubts  of  the  Court  of  ^Appeals  were 
founded  on,  so  as  to  say  whether  the  verdict  would  or  ought  to  resOive 
them. 

On  the  whole,  after  much  reflection,  being  determined  not  to  embar- 
rass the  case  or  delay  the  parties,  if  any  thing  I  can  do  can  avoid  it,  I 
have  come  to  the  conehisiou,  inasmuch  as  I  think,  on  the  evidence  and 
accounts  independently  of  the  verdict,  that  the  bond  and  mortgage  are 
founded  on  a  consideration,  and  that  the  receipt  is  a  forgery;   that  my 


296  SOUTH    CAROLINA    EQUITY   REPORTS.  [*434 

best  course  is  to  sustain  the  former  and  reject  the  latter,  in  deciding  upon 
the  Commissioner's  Report.  This  is  but  an  affirmation  of  the  former 
Circuit  decree.  If  the  Court  of  Appeals  should,  on  considering  the 
verdict,  come  to  the  same  conclusion,  the  case  will  have  been  forwarded  : 
if  not,  they  can  correct  the  report. 

Will  the  difficulty  in  which  I  have  found  myself  authorize  me  to  state, 
with  deference,  very  briefly  and  imperfectly,  why  I  think  the  Court  of 
Appeals  cannot  order  an  issue  in  an  Equity  case  ?  (Wilks' case,  Columbia 
Appeals,  1831.)     If  it  be  not  presumptuous,  I  would  venture  to  do  so. 

An  issue,  such  as  this,  is  intended  to  ascertain  a  fact. 

-.       *It  belongs  to  an  ai)pellate  jurisdiction,  supervising  a  law  deci- 
-J  sion,  to  correct,  by  the  Appeal  decision,  errors  of  law  ;  but,  as  to 
errors  of  fact,  the  only  correction  it  can  make,  is  to  remit  the  case  to  the 
original  tribunal  for  another  trial. 

The  appellate  power,  as  respects  an  Equity  case,  extends  to  the  cor- 
rection by  the  Appeal  decision,  of  errors  of  fact  as  well  as  those  of  law. 
11  John.  Rep.  406  ;  Rolle  Abr.  805  ;  Bac.  Abr.  tit.  Error,  M.  §  2. 

In  remitting  a  law  case  upon  matter  of  fact,  the  appellate  Court  cannot 
remit  one  or  two  points  only;  it  must  remit  the  whole  case,  and  put  the 
Court  below  in  possession  of  it,  so  far  as  the  facts  are  concerned,  in  as 
full  and  ample  a  manner  as  it  had  at  the  first  trial.  Why  ?  Because  the 
people,  by  the  Legislature,  have  committed  to  the  Court  below,  as  con- 
stituted by  them,  the  decision  of  the  facts  ;  and  have  only  allowed  the 
decision  to  be  supervised,  by  way  of  appeal.  Under  the  guise  of 
supervision,  the  Court  of  Appeals  cannot  send  the  facts  to  a  tribunal 
more  satisfactory  to  themselves.  It  belongs  to  the  Legislature,  under 
the  Constitution,  and  not  to  the  Court  of  Appeals,  to  parcel  out  the 
judicial  power.   Const,  of  S.  C,  Art.  11,  Sec.  1. 

With  regard  to  Equity  cases,  there  is  no  difference,  as  respects  the 
power  of  the  appellate  jurisdiction  to  correct  errors  of  law.  Neither, 
speaking  for  myself,  do  I  question  its  power  to  correct  errors  of  fact ; 
although  the  Appeal  opinion,  in  this  very  case,  speaking  of  the  credit 
given  by  the  Chancellor  and  Commissioner  to  pa))er  evidence,  says, 
"  both  of  them  having  concurred  in  giving  full  credit,  this  Court  has 
neither  the  inclination  nor  the  j^ower  to  question  the  correctness  of  their 
conclusion." 

But,  when  an  Equity  decision  on  a  matter  of  fact  comes  up,  the  cor- 
rectness of  which  is  doubted  in  the  Court  above,  what  has  it  power 
to  do  ? 

Although  the  members  of  the  appellate  Court  may  think  the  evidence 
so  doubtful,  that  if  they  had  been  sitting  on  the  Circuit  in  the  Court  of 
original  jurisdiction,  they  would  have  ordered  an  issue  ;  yet,  can  they  say, 
under  the  Acts  constituting  the  Couit  of  Equity,  it  was  error  of  law  in 
the  Circuit  Court  not  to  have  ordered  one  ?  This  Court  is  consti- 
tuted by  Act.XTrott.  No.  460;  A.  A.  1721,  sec.  10,)  with  a  direction  to 
"  proceed,  adjudge,  and  determine,  in  all  causes  brought  into  the  said 
*  iog-]  Court,  as  near  *as  may  be,  according  to  the  known  laws,  customs, 
-■  statutes  and  usages  of  the  kingdom  of  Great  Britain  ;  and  also, 
as  near  as  may  be,  according  to  the  known  and  established  rules  of  his 
Majesty's  High  Court  of  Chancery,  in  South  Britain" — and  again  it  was 
declared  by  act,  (P.  L.  337-9  ;   A.  A.  1784,  sec.   5J  that  "this  Court 


*436] 


COLUMBIA,    JANUARY,    IS 34.  097 


shall  have  full  power  and  authority  to  establish  such  standing  rules  and 
orders  (not  repugnant  to  that  Act)  for  regulating  the  practice  of  the  said 
Court,  as  they  shall  deem  most  consistent  with  justice  and  equity,  and  as 
may  effectually  tend  to  the  dispatch  of  business  without  unnecessary 
delay  to  suitors."  By  the  Act  of  1808,  (vide  1  Faust,  29,  34  ;  A.  A. 
1808,  sec.  4,)  the  Judges  of  the  Court  of  Equity  were  directed  to  convene 
at  stated  periods,  "  to  try  all  appeals  that  may  be  brought  up  from  the 
Circuits." 

The  Act  of  1824,  (A.  A  1824,  p  17,  sec.  1,)  constituting  a  separate 
Court  of  Appeals,  gives  it  "  appellate  jurisdiction  in  all  cases  brought 
up  from  the  Circuit  Courts,  both  of  Law  and  Equity,  in  the  same  man- 
ner, and  with  the  same  powers  and  authority,  in  all  respects  whatsoever, 
as  are  now  exercised  by  law,  by  the  Constitutional  Court,  and  the  Court 
of  Appeals,  [in  Equity,]  or  by  either  of  them  separately." 

With  regard  to  the  Constitutional  Court,  it  can  hardly  be  necessary  to 
remark,  that  its  appellate  power  related  solely  to  cases  carried  from  the 
Law  Circuits,  and  consisted  under  the  Constitution,  (State  Const.,  Art.  10, 
sec.  3,)  merely  "in  hearing  and  determining  all  motions  for  new  trials, 
and  in  arrest  of  judgments,  and  such  points  of  law  as  should  be  submitted 
to  them,"  at  the  end  of  each  law  circuit. 

In  this  manner  has  the  Legislature  parceled  out  the  Judicial  power, 
so  far  as  this  Court  and  the  Court  of  Appeals  are  concerned  :  which 
partition  has  the  sanction  of  the  Constitution,  (Art.  3,  sec.  1,)  which 
declares  that  "  the  judicial  power  shall  be  vested  in  such  superior  and 
inferior  Courts  of  Law  and  Equity,  as  the  Legislature  shall  from  time  to 
time  direct  and  establish." 

Xow,  can  the  Court  of  Appeals,  as  an  appellate  Court,  pronounce  it 
error  of  law,  in  any  case,  in  a  Chancellor,  not  to  have  directed  an  issue 
on  a  matter  of  fact  ?  The  Legislature  has  given  him  the  decision  of 
facts,  with  no  other  qualification  than  that,  if  he  feels  himself  at  a  loss 
*upon  the  evidence,  he  may,  after  the  pattern  of  the  English  r^.oir 
Court,  ask  the  aid  of  a  jury.  ^ 

If  he  orders  an  issue,  the  question  involved  in  it  is  still  with  him  ;  and 
he  may  supercede  his  order,  if  his  doubts  vanish,  or  if  the  parties,  depend- 
ing on  the  fact  that  the  Court  of  law  cannot  nonsuit  the  action  for  want 
of  diligence,  are  guilty  of  gross  delay  ;  or  he  may  differ  from  the  verdict, 
upon  its  return  to  him,  (17  Johns.  R.  267  ;)  or  he  may  order  a  second  trial, 
if  his  judgment  is  not  satisfied  by  the  first.  All  this  is  "according  to 
the  known  and  established  usages  in  chancery  in  South  Britain."  Is  it 
error  to  pursue  it  when  the  Legislature  directs  ? 

It  is  not  error,  before  an  appellate  Court,  that  the  Circuit  Court  having 
authority  to  do  it  has  refused  a  new  trial,  (4  Wheat.  220,)  can  it  then,  on 
principle,  be  error,  that  the  Court  of  Equity  has  not  asked  the  aid  of  a 
jury  ?  .  1  •  1 

The  Court  of  Appeals  occupies  the  same  relation  to  this  Court  which 
the  House  of  Lords  does  to  the  Court  of  Chancery  in  England.  I  have 
searched  diligently,  but  in  vain,  for  a  single  instance  in  which  that  house 
has  either  ordered  an  issue,  or  held  it  error  that  the  Chancellor  failed  to 
order  one. 

The  Legislature  has  given  this  Court  the  decision  of  facts,  and  this  it 
holds  under  the  Constitution.     Can  it  be  taken  from  it  by  another  Court 


298  SOUTH   CAROLINA   EQUITY   REPORTS.  [*437 

without  a  violation  of  that  instrument  ?  The  Legislature  has  intrusted 
this  to  its  capacity  and  judgment :  wlio  is  authorized,  but  the  Legislature, 
to  say  that  the  functionaries  thus  intrusted  are  not  capable?  Others 
intrusted  with  the  supervision  of  their  errors,  mnj  correct  them,  if  it  be 
ajiparent  they  have  committed  any  ;  but  it  can  never  be  allowed  that, 
because  they  doubt  whether  error  has  or  has  not  been  committed,  they 
should  cashier  them  for  incapacity,  and  transfer  their  trust  to  others  ; 
thus  in  reality  constituting  those  whom  the  Legislature  has  appointed 
judicial  officers,  mere  commissioners  to  take  testimony,  the  original  power 
of  decision  being  in  reality  in  the  Court  above,  wlio  aid  themselves  in 
exercising  it  by  calling  on  a  foreign  tribunal. 

If  the  Legislature  had  thought  a  jury  indispensable  to  the  decision  of 
facts,  they  would  have  annexed  one  to  this  Court.  I  value  the  judgment 
^  ,  -,  of  a  jury  so  much  myself,  that,  with  deference*  to  the  better  opinion 
-I  of  the  Legislature,  I  wish  this  Court  had  the  power  of  impanneling 
one  on  suitable  occasions.  I  would  frequently  consult  them,  but  for  the 
delay  and  expense  attending  the  orders  of  issues.  It  puts  back  parties  at 
least  a  year,  and  the  expenses  are  very  great. 

But  to  return,  it  may  be  asked  if  an  appellate  Court  cannot  order  an 
issue,  when  it  may  doubt  whether  the  Court  below  has  decided  correctly 
on  a  fact  ?     What  is  it  to  do  ? 

What  is  a  Court  of  Appeals  intended  for  ?  Is  it  intended  for  any 
other  purpose  than  to  correct  errors  ?  Then  if  it  is  not  able  to  say  that 
error  exists  in  the  circuit  decision,  it  is  not  at  liberty  to  disturb  that 
decision,  but  must  let  it  stand.  (2  McO.  Ch.  R.  15,  59,  71,  73,  74,  95, 
194-5.) 

What  authority  has  the  Court  of  Appeals  over  a  verdict  at  law  ?  Can 
it  set  it  aside  unless  it  is  against  evidence  ?  If  the  evidence  leaves  the  fact 
doubtful,  in  the  minds  of  the  Appeal  Judges,  is  it  not  their  constant  habit 
to  say  that  tlie  jury,  the  authority  established  to  decide  facts  at  law, 
having  decided,  they  are  not  at  liberty  to  set  their  verdict  aside?  Yer- 
dicts  cannot  be  set  aside  but  for  manifest  error. 

The  Court  of  Appeals  has  put  the  decisions  in  equity  upon  the  same 
footing  with  verdicts  at  law.  (2  McC.  R.  71,  73,  74,  75  )  The  late  Judge 
Nott,  in  a  case  in  which  he  delivered  the  opinion  of  the  Court  of  Appeals, 
speaking  of  a  matter  of  fact,  said,  "that  was  properly  for  the  consideration 
of  the  Chancellor,  and  this  Court  will  not  interfere  unless  the  decree  were 
manifestly  contrary  to  the  weight  of  evidence,  The  decree  of  the  Chan- 
cellor must  in  that  respect  be  considered  in  the  nature  of  a  verdict  at 
law."  (2  McC.  Ch.R.  71.)  Mr.  Justice  Johnson,  in  delivering  the  opinion 
of  the  same  Court  in  another  case,  says,  "the  Court  takes  this  occasion 
'to  lay  down  a  few  rules'  which  have  become  the  more  necessary  under 
the  recent  modification  nnd  jyrexnnt  organization  of  this  Court."  (2  McC. 
Ch.  R.  73-4-5,  1827.)  He  then  speaks  of  "unmixed  questions  of  fact." 
He  acknowledges  that  the  Court  of  Appeals  is  not  so  competent  as  the 
Circuit  Court,  which  hears  the  evidence,  to  decide  such  questions.  I  may 
be  allowed  to  observe  by  the  way,  that  if  they  are  not  so  competent, 
merely  because  they  do  not  see  the  witnesses,  their  merely  doubting  is  no 
reason  either  of  reversing  a  decree  or  ordering  an  issue  to  relieve  their 
*439T  f^*^"^'^'^'  since  it  might  be  that  if  they  heard  the  evidence,  as  *the 
^  Chancellor  does,  they  might,  like  him,  have  no  doubts.     The  Judge 


*439J  COLUMBIA,   JANUARY,    1834.  299 

goes  on  and  says,  "where  there  is  evidence  on  both  sides,  this  Court  will 
not  weigh  it,  for  that  belongs  to  the  jury  ;  and  their  view  of  it  is  conclu- 
sive. And  so,  unless  it  appears  that  they  have  acted  under  a  mistake,  or 
have  been  so  palpably  influenced  by  some  improper  motive,  that  the 
erroneousness  of  their  conclusion  is  such  as  to  strike  the  understanding 
wMth  conviction  at  once,  this  Court  will  not  set  their  verdict  aside.  Now, 
all  the  reasoning  upon  which  these  rules  are  founded"  (he  continues) 
"  applies  with  equal,  indeed  with  greater  force,  to  a  case  coming  up  under 
a  report  from  the  Commissioner,  through  the  medium  of  the  Chancellor, 
because  we  are  removed  one  stage  farther  from  the  original  source — and 
this  Court  feels  warranted  in  adopting  these  rules  for  its  future  govern- 
ment." 

These  remarks  spring  from  a  true  conception  of  the  nature  and  duties 
of  appellate  jurisdiction.  It  was  never  intended  to  provide  for  two  full 
trials  in  every  case.  It  was  never  intended  that  as  a  prerequisite  to  a 
decision,  there  should  be  found  two  tril)unals  equally  concurring  in  it ;  it 
was  not  intended  to  set  up  judicial  machinery  so  calculated,  as  that  would 
make  it,  to  wear  out  the  citizen  by  delay  and  impoverish  him  Iiy  expense. 
It  was  not  intended  that  the  circuit  decision  should  be  void  and  go  for  no 
decision  unless  affirmed  by  another  Court,  but  that  it  should  be  a  valid 
judgment  unless  disaffirmed  ;  therefore,  the  Court  undertaking  to  set  it 
aside,  must  see  that  there  is  error,  not  merely  doul)t  whether  there  mny 
or  may  not  be  error  ;  it  was  intended  to  terminate  litigation  as  speedily 
as  it  could  be  done,  by  a  decision  of  which  none  could  say  it  was  erroneous. 
It  may  be  said  of  a  large  portion  of  controversies,  that  if  they  should  be 
subjected  to  live  hundred  trials,  doubts  could  not  be  removed,  or  a  certainty 
of  justice  obtained  ;  but  society  must  adjust  controversies  ;  and  as  soon 
as  it  can  do  so  without  injustice  and  error,  it  is  its  duty  to  do  it. 

Now,  under  the  rules  laid  down  by  the  Court  of  Appeals  itself,  for  its 
government,  (and  as  an  appclhite  tribunal  it  could  lay  down  no  other) 
that  Court  must  acquiesce  in  every  circuit  decision  in  equity,  containing 
no  error  of  law'and  no  manifest  error  in  fact. 

*If  there  be  manifest  error  in  fact,  if  such  circuit  decree  be  mani-  r^);  <  <  a 
festly  against  evidence,  it  must  reverse  the  decree.     If  the  error  •- 
be  not  palpal)le,  the  decree  by  their  own  rule  must  stand. 

But  even  if  that  Court  were  at  liberty  to  withhold  its  confirmation 
from  a  circuit  decree  because  they  doubted  on  it ;  (which,  by  the  way,  is 
a  misconception,  circuit  decrees  not  requiring  confirmation  in  order  to 
their  validity)  but  even  in  that  case,  it  does  appear  to  me  that  by  analogy 
to  what  is  done  in  new  trials  ordered  at  law,  the  Appeal  Court  is  bound 
to  remit  the  ease  to  the  Circuit  Court  for  new  trial,  exactly  upon  the 
same  terms  as  it  stood  at  the  first  trial. 

I  trust  I  have  not  transgressed  in  the  observations  I  have  ventured. 
It  was  not  my  intention  to  do  so.  I  have  studied  to  avoid  language 
calculated  to  throw  any  reflection  upon  the  enlightened  triburial  of  whose 
powers  I  have  been  speaking;  and  if  any  such  has  crci)t  into  what  I  have 
said,  it  was  against  my  will.  All  I  intended  was  to  protect  the  tributuU 
to  which  the  Legislature  has  a]ipointed  me,  from  violation  ;  to  preserve  it 
in  the  same  condition  in  which  it  was  by  the  Legislature,  under  the  Con- 
stitution, delivered  to  me. 

His  Honor  then  took  up  the  Commissioner's  report  and  considered  the 


300  SOUTH    CAROLINA   EQUITY    REPORTS.  [*440 

exceptions  thereto,  but  refused  to  allow  any  exceptions  to  such  parts  of 
this  report  as  were  not  excepted  to  in  the  former  report,  and  to  consider 
any  exception  which  had  been  put  into  the  former  report,  unless  supported 
bv  the  former  decree.  After  having  overruled  the  exception  and  confirmed 
the  report,  there  appearing  a  large  balance  in  favor  of  the  defendants, 
the  Chancellor  dismissed  the  bill. 

From  this  decree  the  plaintiffs  appealed,  on  the  ground  of  error  in  the 
Chancellor's  decision,  in  refusing  the  motion  for  a  new  trial  and  in  over- 
ruling the  exceptions. 

A.  W.  Thompson,  for  the  appellant. 

Farrow  and  WilUams,  contra. 

O'Xeall.  J.  The  Chancellor  has,  at  great  length,  and  with  much 
learning,  discussed  and  denied  to  this  Court  the  power  of  ordering  an 
issue.  Until  he  agitated  the  question,  we  did  not  suppose  there  was  a 
doubt  entertained  upon  the  subject  by  any  member  of  the  Bar  in  South 
*j.j.i1  Carolina.  The  *practice  can  in  our  own  reports  be  traced  back 
-I  to  a  period  within  five  years  of  the  origin  of  the  Court  of  Ap- 
peals in  Equity.  Taylor  and  wife  v.  Mayrant,  et  al.  4  Eq.  Rep.  313 
From  that  time  to  the  present,  it  has  been  constantly  used  by  the  former 
Court  of  Appeals  in  Equity  and  the  present  Court. 

"Without  pretending  to  argue  the  question  on  the  precedents  from 
England  or  Xew  York,  it  will  surely  be  enough  to  satisfy  the  Chancellor, 
to  remind  him  that  a  Court  of  Appeals  in  Equity,  organized  as  ours,  is 
unknown  to  the  jurisprudence  of  the  countries  from  which  he  has  drawn 
so  largely. 

The  Act  of  1808,  after  providing  for  the  establishment  of  a  Court  of 
Appeals  in  Equity,  and  for  the  arrangement  of  two  semi-annual  Courts, 
at  Charleston  and  Columbia,  provides,  "and  it  shall  be  the  duty  of  all  of 
the  Judges  of  the  Courts  of  Equity  to  attend  at  the  said  Courts  of  Appeal, 
and  to  hear  and  try  all  Appeah  that  may  be  brought  up  from  the  Cir- 
cuits hereby  annexed  to  the  said  Courts  respectively."  The  succeeding 
section  directs  the  manner  in  which  any  person  may  appeal  from  "  any 
order  or  decree  of  any  Judge  pre.iiding  on  the  Circuit."  These  pro- 
visions do  not  merely  create  a  Court  of  Errors  for  the  revision  of  decrees 
in  Chancery  :  but  they  create  an  appellate  tribunal  "to  hear  and  try  all 
Appjeals,'^  whether  of  law  or  fact.  The  Court  thus  constituted  became 
pro  hac  vice  the  Chancellor,  and  in  his  place  exercising  his  power  of 
hearing  and  trying,  must  render  the  appropriate  judgment  which  he 
ought,  but  has  perhaps  failed  to  give.  To  enable  the  Court  of  Appeals 
to  do  this,  it  must  have  all  the  Chancellor's  powers,  among  which  is  his 
discretionary  power  of  ordering  an  issue  to  inform  his  con.science  on  a 
doubtful  question  of  fact.  This  is  as  necessary  to  three  judges  as  it  can 
be  to  one.  For  they  may  have  con:<fiences  desiring  information  as  well 
as  he.  I  presume  no  one  of  the  five  judges  who  originally  constituted  the 
Court  of  Appeals  in  Equity  ever  doubted,  that  as  a  Court  of  Appeals  col- 
lectively, they  had  in  cases  of  appeal  all  the  powers  which  individually  on 
the  Circuit  they  could  exercise.  If  any  did,  why  did  they  unanimonsly  order 
*4421  ^"  ^'"^^^  *'"  Taylor  vs.  Mayrant  ?  If  the  former  Court  of  Appeals 
"-'  in  Equity  had  the  power,  this  Court  unquestionably  has  the  same. 
For  the  Act  of 'l824  abolished  the  Court  of  Appeals  in  Equity  and  the 


'U'2] 


COLUMBIA,    JANUARY,    1834.  301 


constitutional  Coart,  and  created  this  Court  in  their  stead,  giving  it  all 
the  powers  which  belonged  to  either.  It  is  true  we  are  reluctant  to 
decide  upon  questions  of  fact  :  we  generally  prefer  to  follow  and  adopt  the 
Chancellor's  decision.  In  expressing  our  concurrence  on  questions  of 
fact  in  which  the  Commissioner  and  Chancellor  have  united  in  judirment 
we  have  used  the  loose  expressions  "this  Court  has  neither  the  incli^iatiou 
nov  the poicer  to  question  the  correctness  of  their  conclusion."  But  in  usiu"- 
such  expressions  it  was  not  intended  to  disclaim  the  power  of  examinint' 
a  Chancellor's  decision  upon  facts  in  every  case  ;  but  merely  to  say  in 
the  particular  case,  that  according  to  previous  decisions  we  could  not 
interfere  with  that  decision.  I  am  sure,  after  the  short  experience  I  have 
had  on  this  Bench,  that  I  can  safely  say  we  have  no  wish  to  increase  our 
jurisdiction,  or  to  trench  in  any  way  upon  the  JeaJousJy  gnar'led  juri^- 
diction  of  Chancery.  But  it  is  our  duty,  as  well  as  that  of  every  other 
Judge,  to  "judge  righteously  between  every  man  and  his  brother  and 
the  stranger  that  is  with  him."  "We  as  well  as  the  Chancellor  are 
charged  "  ye  shall  not  respect  persons  in  judgment,  but  ye  shall  hear  the 
small  as  well  as  the  great ;  ye  shall  not  be  afraid  of  the  face  of  man,  for 
the  judgment  is  G^orf'6'."  In  the  exercise  of  such  a  duty,  appellate  as  it 
happens  to  be  in  our  case,  we  must  be  satisfied  that  the  judgment  which 
we  are  to  pronounce  is  correct.  If  we  do  not  perceive  manifest  error  in 
the  Chancellor's  judgment,  upon  the  facts,  we  may  be  justified  in  resolv- 
ing our  doubts  by  the  arhitrio  honi  viri:  but  if  we  do  perceive  error, 
and  yet  are  not  satisfied  to  say  that  the  Chancellor's  decision  is  so  mani- 
festly wrong  that  we  will  reverse  his  decree,  we  surely  have  the  right  to 
inform  our  consciences  by  the  verdict  of  a  jury,  before  we  give  a  final 
judgment  in  the  place  of  the  Chancellor. 

TTe  agree  with  the  Chancellor,  that  the  Court  ordering  the  issue  has 
the  power  of  deciding  upon  the  motion  for  a  new  trial  of  the  issue.  Tay- 
lor i-s.  Mayrant,  4  Eq.  Rep.  515.  *But  unless,  as  in  the  case  of  r*i  io 
Taylor  vs.  Mayrant,  the  decision  upon  the  verdict  in  the  issue  L 
may  involve  a  reversal  of  some  previous  decree  in  the  cause,  I  see  no 
impropriety  in  the  Chancellor  hearing  and  deciding  upon  a  motion  for  a 
new  trial  of  an  issue  ordered  by  this  Court.  In  some  cases  such  a  course 
may  be  necessary  (as  in  this)  to  bring  up  the  whole  case  to  this  Court. 
The  Chancellor  can  have  as  little  difficulty  in  saying  whether  the  result 
of  the  issue  would  be  satisfactory  to  our  consciences  as  he  would  have  in 
determining  whether  the  result  of  an  issue  ordered  by  his  colleague, 
would  be  to  him.  His  conscience  would,  in  each  case,  be  the  conscience 
of  the  Chancellor  seeking  information.  But  it  seems  to  me,  in  this  case, 
that  he  ought,  according  to  his  own  principles,  to  have  decided  on  the 
motion.  Chancellor  Thompson  ordered  the  issue  in  the  first  instance — 
this  Court,  in  the  former  opinion,  enlarged  the  order,  and  directed  the  issue 
to  be  made  up  anew,  conforming  to  this  enlargement.  This  surely  was 
not  ordering  an  issue  for  our  information  alone — the  doubt  originated  in 
the  conscience  of  the  Chancellor,  he  ordered  an  issue;  we  thought  his 
object  would  be  better  obtained  by  adding  another  inquiry.  So  that,  in 
this  point  of  view,  the  Chancellor  ought'^  to  have  met,  considered,  and 
decided  upon  the  motion  for  a  new  trial  of  the  issue.  But  as  his  decree, 
dismissing  the  bill,  is,  in  effect,  a  refusal  of  the  motion  for  a  new  trial,  it 


802  SOUTH    CAROLINA    EQUITY   REPORTS.  [*443 

will   not  be  necessary  to  remand  the  cause  to  the  Circuit  for  an  express 
adjudication  upon  that  motion. 

[His  Honor  here  went  into  an  examination  of  the  grounds  on  the 
motion  for  a  new  trial,  which  having  been  considered,  the  motion  was 
refused.  As  they  relate  entirely  to  the  facts,  and  involve  no  legal  prin- 
ci])les,  the  remarks  on  them  are  omitted  ] 

This  brings  us  to  consider  of  the  questions  arising  out  of  the  accounts  ; 
and  it  is  to  be  regretted  that  the  complainant's  counsel  had  not,  on  the 
former  occasion,  when  this  case  was  before  us,  presented  his  objections. 
If  this  had  been  done,  the  case  might  have  gone  back,  with  such  instruc- 
*i4.i1  tions  to  the  Commissioner  as  would  have  enabled  him  to  *havepre- 
-^  sented  a  report,  calculated  to  do  equal  justice  to  the  parties.  But,  as 
it  is,  he  has  been  limping  on  in  the  dark,  with  instructions  to  direct  him  on 
a  part  of  the  case,  but  none  as  to  the  other  parts.  That  injustice  lias 
been  done,  under  such  circumstances,  is  not  to  be  wondered  at ;  and  that 
the  case  must  once  more  go  back,  almost  to  its  beginning  point,  is  to  be 
regretted,  (but  it  is  no  great  marvel),  after  a  pilgrimage  of  ten  years  in 
Chancery, 

I  agree  with  the  complainant's  counsel,  that  he  was  not  bound  to 
appeal  to  this  Court,  on  any  of  the  points  involved  in  the  Commissioner's 
report,  so  long  as  any  thing  remained  to  be  done  by  the  Commissioner 
to  complete  it- for  confirmation  generally,  and  until  it  was  confirmed  by 
tlie  Chancellor's  decree.  But  although  I  think  he  was  not,  according 
to  the  practice  of  this  Court,  bound  to  appeal,  yet  I  think  he  could  have 
appealed  on  any  point  which  the  Circuit  decree  finally  settled. 

The  Chancellor  is  correct  in  saying  that  a  report  of  the  Commissioner 
must  I)e  regarded  as  correct,  unless  the  party  complaining  of  it  will 
specify  its  errors  by  exceptions.  The  rule  is  very  well  stated,  l)y  Mr. 
Justice  Spencer,  in  the  case  of  Wilkes  vs.  Rogers,  6  John.  Rep.  591,  in 
the  following  terms:  "It  appears  to  me,  that  exceptions  partake  of  the 
nature  of  special  demurrers  ;  and  if  reports  are  erroneous  the  party  nmst 
])ut  his  finger  on  the  error.  When  he  does  so,  the  parts  not  excepted  to 
are  admitted  to  be  correct,  not  only  as  it  regards  the  principles,  but  as 
relates  to  the  evidence  on  which  they  are  founded."  If  a  party  does  not 
think  proper  to  except  to  a  report  at  all,  he  cannot  be  heard  against  its 
confirmation,  on  account  of  any  error,  either  of  law  or  of  fact,  committed 
by  the  Commissioner.  Foot  u.s.  Van  Ranst,  ante,  128,  decided  at 
Charleston,  April,  sitting,  l83o.  But  under  the  practice  heretofore  pur- 
sued by  this  Court,  if  a  party  excepted  to  the  Commissioner's  report,  and 
some  of  his  exceptions  were  sustained,  and  some  overruled,  and  the  case 
sent  back  by  the  Chancellor  to  the  Commissioner,  he  might  appeal  at 
once,  to  this  Court ;  or  wait  until  there  was  a  final  decree  of  confirma- 
*4451  ^''^"'*  ^"^  ^^us  bring  up  the  whole  case.  This  is  in  the  language 
of  Judge  Nott,  in  the  case  of  Harrison  i-.s.  Jenkins,  allowing  the 
party  the  right  to  appeal  as  "  long  as  there  is  a  fragment  on  which  he  can 
lay  hold."  The  complainant,  as  it  appears  from  the  Chancellor's  decree,  ex- 
cepted to  the  Commissioner's  report,  before  Chancellor  De  Saussnre,  on 
all,  or  nearly  all,  the  points  on  which  he  exce[)ted  to  it  before  Chancellor 
Johiiston.  It  is  true,  th'at  he  could  not  allow  the  exceptions  contrary 
to  his  predecessor's  decree  ;  still,  however,  under  the  rule  of  practice 
which  I  have  stated,  the  complainant  has  the  right  of  appeal,  and  it  thus 


#445] 


COLUMBIA,    JANUARY,    1834.  303 


becomes  necessary  for  us  to  decide  on  the  merits  of  tlie  various  exceptions 
put  in  by  the  complainant,  to  the  Commissioner's  report. 

[Having  examined  the  exceptions  and  sustained  some  of  them,  Clmn- 
celior  Johnston's  decree  was  reversed,  and  tlie  case  sent  bade  to  the 
Commissioner,  with  instructions  to  restate  the  accounts.] 

Johnson,  J.,  concurred. 


Joseph  Price,  Executor  of  John  Turner,  and  Rebecca  Turner,  vs. 

Wilson  Nesbit. 

By  the  Act  of  1808,  a  party  lias  the  right  to  appeal  "from  any  order  or  decree  of 
any  Judge   presiding  on  the  Circuit,"'  whether  it  be  interlocutory  or  finul    [*t5:!1 

"Where  there  has  been  no  final  judgment  in  a  cause,  a  party  may  on  appeal  examine 
the  whole  case,  and  open  for  consideration  all  prior  <  r  interlocutory  orders  or 
decrees  any  way  connected  with  the  merits  of  the  decree  from  which  he  has 
appealed;  and  this  too  notwithstanding  such  ordtrs  or  decrees  may  have  been 
affirmed  by  the  Appeal  Court.  [*453] 

A  Circuit  decree  affirmed  by  the  Court  of  Appeals,  if  it  is  a  final  decree,  can  never 
again  be  examined,  either  on  appeal,  by  bill  or  review  or  on  a  rehearing;  but  if 
it  merely  establishes  a  general  right  of  recovery  and  leaves  the  extent  of  tlie 
recovery  to  be  afterwards  ascertained,  if  it  does  not  end  the  controversy  but  still 
leaves  something  to  be  done  to  enable  the  Court  to  pronounce  judgment,  it  is 
examinable  on  an  appeal  from  a  final  deciee.  [*457] 

So  long  as  a  decree  operates  merely  as  authority,  or  as  the  reasoning  of  the  Court  to 
prove  the  party's  right  in  whose  favor  it  is  pronounced,  it  may  be  reviewed  and 
reversed  whenever  it  comes  up  properly  before  the  Court  of  Appeals  in  any  of  the 
subsequent  stages  of  the  case.  [*459] 

A  sale  by  an  administratrix,  where  the  administration  was  afterwards  revoked  on  a 
will  being  admitted  to  probate,  is  valid  if  there  be  no  fi-aud;  and  tiiat  the  admin- 
istratrix was  herself  the  purchaser  does  not  render  the  sale  vnid.  It  can  only  be 
avoided  at  the  instance  of  the  legatees  and  not  of  the  executor.  ["'1(51] 

A  decree  of  the  Ordinary  at  the  instance  of  the  parties  interested,  against  the 
administratrix,  which  includes  the  price  of  the  negroes  purchased  by  her,  is  a 
confirmation  of  the  sale.  [*4lJ--i] 

Spartanburg!).  The  bill  states  that  John  Turner  executed  his  last 
will  and  testament  on  the  9th  May,  1818,  and  shortly  afterwards  died, 
leaving  it  of  full  force.  That  the  will  was  jiresenled  for  probate  in 
July,  1813,  but  tlie  Ordinary  refused  to  admit  it  to  probate,  and  granted 
letters  of  administration  on  his  estate  to  his  widow,  Rebecca  Turner  ; 
and  the  defendant,  Wilson  Nesbit,  was  the  security  to  her  adniinistratiou 
bond.  By  virtue  of  an  order  from  the  Ordinary  the  ^personal  r*^^g 
estate  was  sold  by  the  administratrix,  and  at  the  sale  she  pur- 
chased the  negroes  Job,  Reuben,  Sarah,  Jwhn  and  Ephraim,  but  neither 
inadequacy  of  })rice  nor  unfairness  in  the  sale  is  charged.  That  on  the 
17th  August,  1-818,  more  than  five  years  after  the  sale,  the  will  was  again 
presented  to  the  Ordinary  and  admitted  to  probate,  and  the  plaintiff, 
Joseph  Price,  qualified  as  an  executor.  The  reason  assigned  by  the  bill 
for  the  delay  in  procuring  probate  is,  that  some  of  the  witnesses  were 
legatees  who  refused  until  that  time  to  prove  it,  preferring  adminis- 
tration  as  in  a  case  of  intestacy.  That  by  the  provisions  of  the  said  will, 
the  negro  Job  was  bequeathed  to  Nathan  Turner,  (one  of  testator's  sous) 
and  Sarah  to  his  daughter  Sarah,  during  their  lives,  and  at  their  deaths 


304  SOUTH    CAROLINA    EQUITY   REPORTS.  [*446 

to  be  equally  divided  among  the  other  children,  and  the  residue  of  his 
property  he  devised  to  his  wife  for  life,  and  at  her  death  to  be  equally 
divided  amongst  his  children  named  in  the  will.  That  Rebecca  Turner, 
previous  to  the  probate,  on  the  20th  November,  181T,  being  then  aged 
and  infirm  and  insane  and  incapable  of  executing  a  contract,  by  the  per- 
suasions of  her  son  Matthias  Turner,  executed  a  bill  of  sale  to  him  of  the 
said  slaves,  on  the  condition  that  he  would  maintain  her  during  her  life  : 
that  the  defendant  Nesbit  drew  tlie  contract  between  them  and  became 
bound  in  a  l)ond  as  the  surety  of  Matthias  Turner  for  her  maintenance, 
and  that  the  bill  of  sale  was  fraudulently  procured,  and  the  condition  of 
the  bond  had  not  been  performed.  That  about  a  year  after  the  negroes 
went  into  the  possession  of  Matthias  Turner,  he  sold  them  to  Nesbit,  who 
had  a  full  knowledge  of  all  these  facts,  and  Matthias  Turner  having  died 
he  is  his  executor,  and  retains  possession.  The  bill  further  states  that 
by  a  decree  of  the  Ordinary  in  1820,  against  Rebecca  Turner,  as  admin- 
istratrix of  John  Turner,  there  is  due  to  each  of  the  distributees  (there 
being  twelve  in  number)  the  sum  of  $239  34,  of  the  sales  of  the  personal 
estate  made  under  the  order  of  the  Ordinary.  And  it  is  further  stated 
that  Rebecca  Turner  has  executed  a  bill  of  sale  for  the  negroes  to  Joseph 
Price  and  Nathan  Byers,  to  enable  them  to  recover  them  from  Nesbit. 
*4i'7l  ^^^  '^'^^  prays  that  the  bill  of  sale  from  Rebecca  Turner*  to 
-'  Matthias  Turner,  may  be  declared  null  and  void — and  that  if  the 
sale  by  Rebecca  Turner,  as  administratrix,  and  purchase  by  herself, 
should  not  be  declared  void,  that  then  the  negroes  should  be  delivered 
up  to  her — and  if  that  sale  should  be  annulled,  that  the  negroes.  Job  and 
Sarah,  be  delivered  to  Joseph  Price,  the  executor  of  John  Turner ;  and 
that  Nesbit  should  give  security  that  the  other  negroes  should  be  forth- 
coming at  the  death  of  Mrs.  Turner.  That  if  neither  the  bill  of  sale  nor 
the  sale  by  tlie  administratrix  should  be  declared  void,  that  the  defendant, 
Nesbit,  as  the  surety  to  the  administration  bond,  should  be  decreed  to 
pay  Joseph  Price,  as  the  executor  of  John  Turner,  deceased,  the  respec- 
tive shares  of  each  distributee,  according  to  the  Ordinary's  decree  ;  and  to 
support  Rebecca  Turner,  during  her  life. 

The  answer  of  Wilson  Nesbit  denies  the  charge  of  fraud,  both  as  to 
himself  and  Matthias  Turner,  and  states  that  he  is  a  purchaser  for  a 
valuable  consideration,  upwards  of  seven  hundred  dollars  of  which  he 
has  paid,  and  denies  the  plaintiff's  right  to  recovery. 

The  case  was  first  heard  by  Chancellor  James,  at  June  Term,  1822, 
who  refused  to  hear  evidence,  and  decreed  on  the  case  made  in  the  bill 
and  answers  against  the  defendant,  Nesbit,  for  the  negroes  and  their 
hire,  on  the  grounds  : 

1.  That  the  negroes  were  purchased  by  the  administratrix,  at  her  own 
sale  :  2.  Because  a  sale  of  the  negroes  was  incompatible  with  the  terms 
of  the  will :  and,  3.  Because  Nesbit  was  a  purchaser  with  notice — and 
ordered  a  referen(^  to  the  Commissioner  to  ascertain  the  value  of  the 
hire.  On  appeal,  the  Court  of  Appeals  in  Equity  (this  being  before  the 
organization  of  the  present  Court  of  Appeals)  affirmed  the  decree.  On 
the  reference  under  this  decree  being  held,  the  Commissioner  reported 
that  the  personal  estate  w'as  all  sold  at  full  value,  under  the  administra- 
tion of  Rebecca  Turner,  the  parties  in  interest  being  all  of  full  age  and 
present  assenting  thereto,   and  have   since    received   their  full   shares, 


*447] 


COLUMBIA,    JANUARY,    1834.  305 


amounting  to  $227  each — that  Rebecca  Turner  did  not  purchase  more 
than  lier  one-third  part,  and  that  she  subsequently  sold  the  negroes  to 
Matthias  Turner,  who  sold  *at  a  fair  price,  to   the  defendant,  p. 
j^fesbit;  and  that  the  will  was  not  admitted  to  probate  until  1818,  L  ■*'+^ 
when  the  estate  was  settled  up  under  the  administration. 

The  defendant  contended  before  the  Commissioner,  that  as  the  plaintiff", 
Joseph  Price,  and  the  other  children  of  John  Turner,  had  received  their 
full  shares  of  what  the  negroes  sold  for  at  the  sale,  and  under  the  admin- 
istration, they  could  not  again  receive  the  value  of  the  negroes  under  the 
will  and  decree,  without  refunding — and  the  Commissioner  submitted  the 
question  for  the  decision  of  the  Court;  but  also  reported  that  the  value 
and  hire  of  the  negroes  would  make  the  sum  of  $2,495  85,  with  interest 
from  the  27th  May,  1827. 

The  case  was  argued  before  his  Honor  Chancellor  De  Saussure,  at 
June  Term,  1827.  He  decreed  that  the  complainant  Joseph  Price,  and 
the  other  distributees  of  John  Turner,  having  once  received  their  full 
shares  of  the  value  of  the  negroes,  under  the  sale  made  by  the  adminis- 
tratrix, they  could  not  receive  them  again  without  accounting  for  the 
amount  first  received.  He  ordered  the  case  back  before  the  Commis- 
sioner, with  instructions  to  re-investigate  the  real  and  moderate  value 
and  hire  of  the  slaves  in  question;  and  to  ascertain  the  amount  actually 
received  by  the  plaintiffs,  out  of  the  sales  of  that  property,  made  by 
the  administratrix,  and  to  make  up  the  accounts  accordingly,  and  to 
allow  interest  on  both  sides.  No  appeal  was  taken  from  this  decree — 
and  no  reference  or  other  proceeding  was  had  in  the  case  before  the 
Commissioner. 

At  June  Term,  1829,  the  Commissioner  reported  that  from  a  review  of 
the  evidence  taken  on  a  former  reference  it  appeared  that  the  fact  stated 
by  the  then  Commissioner  in  his  report — that  the  legatees  of  John 
Turner  had  received  their  full  shares  of  his  estate,  is  erroneous — some 
have  received  their  full  shares,  others  have  received  a  part,  and  without 
a  further  and  minute  investigation  the  Commissioner  could  not  report  on 
the  state  of  these  accounts,  and  required  a  decretal  order  to  govern  him 
in  the  investigation.  These  several  views  were  submitted  to  Chancellor 
Harper,  at  June  Term,  1829.  His  Honor  decreed,  confirming  the  Com- 
missioner's report  made  in  1827,  as  to  the  value  and  hire  of  the  negroes, 
^without  referring  the  case  back  before  the  Commissioner  under  r-j-AAQ 
the  decree  of  Chancellor  De  Saussure,  made  at  June  Term,  '- 
1827  ;  from  which  decree  the  defendant  appealed  and  moved  this  Court 
to  reverse  all  the  decrees  and  decretal  orders  heretofore  made,  and  to 
dismiss  the  bill  or  send  the  case  back  on  the  grounds  : 

1.  Because  the  Court  had  no  jurisdiction  of  the  case,  the  plaintiff 
Joseph  Price,  having  complete  and  adequate  remedy  at  law. 

2.  Because  the  decree  exceeds  the  case  made  in  the  bill,  and  furnishes 
of  itself  evidence,  that  it  is  based  upon  erroneous  legal  principles  and 
statements  of  facts,  and  is  therefore  void. 

3.  Because  the  parties  interested  were  all  of  full  age,  and  not  only 
conusant  but  advising  to  all  the  actings  unde?  the  administration,  and 
have  received  their  shares  of  the  proceeds  of  the  sale  by  the  administratrix 
— and  if  that  sale  is  to  be  set  aside  at  their  instance,  they  should  be  com- 
pelled to  refund  the  amounts  received  by  them  under  that  sale, 

YoL.  I.— 20 


306  SOUTH    CAROLINA    EQUITY    REPORTS.  [*449 

4.  Because  it  is  never  too  late,  while  a  case  remains  in  this  Court,  and 
the  nriiuutest  order  is  required  of  the  Court,  for  it  to  interfere  to  prevent 
injustice  from  its  mistakes  of  law  or  fcxct,  when  evidence  of  such  mistakes 
is  furnished  by  the  case  itself,  as  in  the  present  case. 

5.  ]3ecause  if  the  decree  of  the  Court  of  Appeals,  affirming  Chancellor 
James's  is  irreversible — the  decree  of  Chancellor  De  Saussure  in  1827, 
ordering  the  heirs  of  John  Turner  to  refund,  not  having  l)een  appealed 
from,  is  equally  so  ;  and  that  the  Chancellor,  therefore,  when  the  case 
came  up  at  June  Term,  1829,  had  no  authority  to  decree  farther  than  on 
the  state  of  the  accounts,  made  under  the  decree  of  182T. 

6.  Because  as  there  are  no  debts  due  by  the  estate,  any  amount  recov- 
ered in  this  case,  will  be  in  trust  for  those  who  have  already  received 
their  shares  of  the  proceeds  of  the  sales  of  this  property,  and  the  decree  of 
Chancellor  De  Saussure,  ordering  theoi  to  account  for  the  sums  first 
received,  was  correct— the  more  especially  so,  as  since  the  original  decree 
*i"nl  Rebecca  Turner  is  dead,  and  those  who  will  *be  benefitted  by  the 

-I  decree,  (and  who  sue  by  their  trustee,  the  executor,)  will  be  entitled 
to  the  property — thus  receiving  their  shares  twice. 

7.  Because  the  report,  as  to  the  hire  of  the  negroes,  is  excessive,  and 
would  have  been  excepted  to,  had  not  the  decree  of  1827  ordered  a  refer- 
ence as  to  that  point,  as  to  which  purpose  the  Chancellor  had  an  unques- 
tionable right  to  order  a  farther  reference. 

8.  Because  the  defendant,  as  to  the  purchase  from  Matthias  Turner, 
who  purchased  from  Rebecca  Turner,  has  a  right  to  the  shares  of  Mat- 
thias and  Rebecca  Turner,  under  their  warranties,  as  v/ell  as  a  right  to 
the  share  of  Matthias  Turner  in  the  estate  of  his  father,  and  to  his  interest 
in  the  shares  of  Nathan  and  Sally  Turuei',  (all  of  whom  are  dead,)  as  the 
executor  of  Matthias  Turner. 

9.  Because,  whilst  one  ground  of  the  jurisdiction  of  this  Court  is  to 
redress  injuries  resulting  from  mistakes  of  others,  it  should  not  refuse  to 
correct  its  own  mistakes. 

Tlie  cause  was  argued  before  this  Court  in  January,  1831,  postponed 
for  consideration,  re-argued  and  finally  determined  at  this  Term. 

Irh]i,  for  the  appellant,  argued  that  if  the  case  made  is  not  such  an  one 
as  entitles  the  plaintiff  to  recover  either  in  law  or  equity,  the  Court  may 
at  any  stage  interpose  and  dismiss  the  bill.  Reeves  x\  Parish,  1  M'C 
Ch.  Rep.  56.  The  bill  is  filed  to  enforce  a  legal  remed}'.  It  sets  out  an 
accounting  before  the  Ordinary  and  a  decree  thereon  for  the  value  of  the 
property,  which  is  a  confirmation  of  the  sale  ;  Cates  xi.  Edgar,  ( — )  and 
on  which  an  adequate  remedy  at  law  exists.  If  the  decree  adjudicates 
questions  not  made  in  the  pleadings  it  can  be  set  aside  at  any  time,  1 
Vernon,  292,  and  the  Court  will  rectify  errors  apparent  on  the  face  of  a 
decree;  6  Yes.  92,  3  Eq.  Rep.  616.  The  decree  of  Chancellor  James, 
afterwards  affirmed  by  the  Court  of  Appeals,  is  predicated  on  the  idea 
that  the  will  hav'ng  been  set  up  avoided  the  sale,  but  the  case  of  B3'ers 
and  Price  v.  Benson,  2  N.  &  M'C.  577,  decides  that  the  sale  was  valid. 
A  decree  to  refer  is  not  final  ;  10  Ves.  34  ;  2  Cranch.  33 ;  17  Johns.  548. 
And  if  a  decree  is  not  final  it  may  be  opened  and  examined  by  a  Circuit 
*4511  '^"'^'se.  4  John.  Ch.  545.  And  a  decree  which  *does  injustice  may 
be  rectified  if  it  is  not  enrolled,  2  Atk.  386.    As  regards  the  case  of 


*451] 


COLUMBIA,    JANUARY,    1834.  307 


Hall  V.  Goodwyn,  4  M'C.  442,  there  is  a  distinction  between  a  judj^incnt 
which  merely  t^cttles  a  legal  principle  and  one  which  vests  a  ri;j;ht.  The 
defendant  may  set  up  agahist  the  executor  a  claim  which  he  has  on  the 
estate.  He  has  Matthias  Turner's  original  interest  in  the  estate  of  John 
Turner,  and  his  share  of  Sarah's  and  Rebecca's  part,  and  to  this  extent 
he  may  hold.  But  in  any  event  Chancellor  De  Saussure's  decree  not 
having  been  appealed  from  is  of  equal  validity  with  that  of  Chancellor 
James,  and  it  sets  aside  the  report  of  the  Commissioner  made  under  the 
first  decree,  and  must  be  considered  as  obligatory  on  the  riglits  of  tiie 
plaintiff. 

Gregg,  contra.  The  question  is,  whether,  according  to  the  law  and 
practice  of  our  Court,  the  decree  of  the  Appeal  Court  affirming  Chan- 
cellor James's  decree,  can  be  reversed  ?  If  our  Courts  have  settled  this 
question,  we  need  not  look  to  England  or  New  York,  for  lights  to  guide 
us.  According  to  the  fixed  and  settled  principles  of  this  Court,  a  final 
decree  on  the  merits,  will  not  be  opened  and  reviewed.  In  1S26  tliis 
Court  refused  to  entertain  a  petition  for  re-hearing  in  this  case.  See 
also  Haskell  v.  Raoul,  1  M'C.  Ch.  '22;  S.  C.  2  Tread.  App.  852;  Carr 
r.  Green,  Law  Jour.  371.  In  England,  the  Chancellor  hal)itually 
reviews  the  decrees  of  the  Master  of  the  Rolls  and  Vice  Chancellor,  and 
corrects  their  errors  ;  but  after  a  case  has  been  heard  by  the  Cliancellor, 
it  will  not  be  opened,  but  under  strong  convictions  of  error;  and  there 
is  no  instance  in  which  the  judgment  of  the  House  of  Lords  has  been 
re-heard — nor  any  instance  where  a  case  has  been  re-heard,  after  judg- 
ment, by  the  Court  of  Errors,  in  New  York.  The  decree  having  settled 
all  the  leading  points  in  the  case,  is  conclusive  on  the  parties,  and  this 
Court  cannot  now  incpiire  into  the  grounds  on  which  it  is  based.  It  has 
been  assumed,  in  argument,  that  there  was  no  evidence  ;  but  after  this 
lapse  of  time,  this  cannot  be  known — and  it  may  be,  that  the  decree  was 
predicated  on  statements  and  concessions,  made  on  the  trial. — At  all 
events,  the  Court  will  be  careful  in  laying  down  a  rule  which  will  open  a 
door  for  the  examination  of  all  the  decrees  of  the  old  Court. 

*W.  TJiomjyson,  for  the  appellant,  in  reply.  When  the  Court  r*#co 
has  finally  acted  on  a  case  and  the  rights  of  parties  are  fixed,  the  '- 
decree  will  not  be  disturbed ;  but  as  long  as  the  Court  has  possession  of 
a  case  it  is  a  right  which  it  claims  for  itself  to  correct  any  error  into 
which  it  has  fallen.  Regularly  no  case  should  be  brought  before  this 
Court  until  it  is  finally  disposed  of  on  the  Circuit.  The  Court  will 
refuse  to  enforce  a  decree  when  "there  is  error,  and  will  correct  instruc- 
tions, 16  Ves.  Senr.  218,  239.  In  New  York  interlocutory  orders  must 
be  appealed  from  in  fifteen  days,  and  yet  seven  years  after,  the  Court  being 
of  opinion  there  was  error,  reviewed  and  reformed  the  decree.  11  John. 
548.  No  decree  is  final  unless  it  have  the  binding  efficacy  of  a  judgment. 
2Cranch33;  16  John.  415;  2  Atk.  438:  and  the  Court  habitually 
corrects  errors  committed  in  the  progress  of  a  cause,  12  Yes.  458  ;  3  Lq. 
Rep.  616.  Where  there  is  a  want  of  jurisdiction  the  i)arty  will  be  entitled 
to  an  appeal  "as  long  as  there  is  a  fragment  on  which  he  can  lay  hold." 
Harrison  v.  Jenkins,  (MS.)  Rees  v.  Parish,  1  M'C.  56;  AVilson  r. 
Cheshire,  1  M'C.  Ch.  242;  Farley  v.  Farley,  1  M'C.  Ch.  506. 
According  to  the  plaintiff's  (Price's)  own  showing  the  Court  has  no 


£08  SOUTH    CAROLINA    EQUITY    RErORTS.  [*452 

jurisdiction,  for  he  has  either  no  right  of  relief,  or  he  has  a  remedy  at  law 
in  trover,  or  by  action  on  the  administration  bond.  If  the  sale  by  the 
administratrix  be  void,  he  can  recover  the  negroes  as  executor ;  and  if 
valid  he  can  proceed  on  the  bond  and  recover  the  amount  of  the  Ordi- 
nary's decree.  There  is  nothing  to  impeach  the  sale  to  the  defendant — 
as  a  bona  fide  purchaser  he  is  entitled  to  the  protection  of  this  Court ; 
and  the  estate  having  been  settled  up  under  the  administration  when  all 
the-  parties  were  conusant  of  their  rights,  should  be  considered  as  con- 
clusive, or  otherwise  according  to  this  decree  the  parties  will  have 
received  their  distributive  shares  twice. 

O'Xeall,  J.  The  determination  of  this  ancient  and  vexatious  case, 
on  grounds  satisfactory  to  the  parties,  is  hardly  to  be  expected ;  but  it  is 
to  be  hoped,  that  it  may  be  sustained  by  such  reasons,  as  will  satisfy  the 
bar  and  the  intelligent  disinterested  community,  who  have  taken  so  deep 
^  ,  an  *interest  in  it.  This  hope  is  expressed,  not  with  a  view  to 
-•  deprecate  censure,  or  to  prevent  a  critical  examination  of  our 
judgment;  but  from  a  feeling,  which  has  been  eloquently  described  by 
our  learned,  venerable,  and  amiable  Chancellor  (De  Saussure)  when  he 
said  iu  this  very  cause,  that  "  next  to  doing  justice,  the  greatest  consola- 
tion of  Judges,  is  so  to  administer  that  justice,  as  to  satisfy  the  parties 
that  the  merits  of  their  causes  have  been  fully  brought  out,  ivell  consid- 
ered, and  impay-tially  decided.'''' 

It  is  first  to  be  examined  and  determined  whether  the  appellant  has 
now  the  right  to  go  back  beyond  the  decree  of  Chancellor  James,  at 
June  Term,  1822,  and  that  of  the  Court  of  Appeals  in  Equity  affirming 
his  decree,  at  December  Term,  1823.  This  will  depend  upon  the  cha- 
racter in  which  they  are  to  be  viewed  ;  if  they  are  together  a  final 
judgment  in  the  cause,  then  there  can  be  no  doubt  that  the  appellant  will 
be  estopped.  But  if  they  have  not  this  character,  then  they  cannot 
preclude  the  appellants  from  examining  the  whole  case 

The  distinction  between  a  final  and  an  intei'locutory  judgment  has  not 
been  heretofore  generally  understood ;  and  the  Court  have  been  again 
and  again  eral^arrassed  in  determining  on  the  question  whether  the  party 
had  the  right  to  appeal,  which  has  been  supposed  to  depend  on  the 
question  whether  the  decree  was  interlocutory  or  final.  On  looking  into 
the  Act  of  1808,  1  Brev.  Dig.  Tit.  58,  sect.  C3,  I  am  perfectly  satisfied 
that  a  party  has  the  right  to  appeal  from  "  anij  order  or  decree  of  any 
Judge  presiding  on  the  Circuit."  The  words  quoted  are  those  used  in 
the  Act  when  speaking  of  and  directing  the  manner  in  which  appeals  are 
to  be  taken.  The  distinction  between  interlocutory  and  final  orders  or 
decrees  is  not  noticed,  and  a  general  right  of  appeals  is  plainly  given 
from  any  order  or  decree  from  which  any  person  may  wish  to  appeal. 
The  circumstance,  therefore,  that  Chancellor  James's  decree  was  appealed 
from  and  affirmed  by  the  Court  of  Appeals,  does  not  aid  us  in  giving 
character  to  the  judgment.     Both  may  be  interlocutory  only. 

In  the  case   of  Travis  v.  Waters,  1  John.   Ch.   Rep.  88,  Chancellor 

;»:  i r  j-i  Kent,  speaking  of  a  decree  which  he  declared  to  *be  a  final  one, 

-^  said,  "It  was  made  upon  the  coming  in   of  the  Master's  report, 

ascertaining  the  lands  to  be  conveyed,  and  the  balance  to  be  previously 

paid.     It  was  the  final  end  and  closing  of  the  controversy,  and  was 


*454] 


COLUMBIA,    JANUARY,    1834.  309 


analogous  to  ^  final,  as  contradistinguished  from  an  interlocutory  judg- 
ment at  law."  This  concluding  illustration  of  Chancellor  Kent  seems 
to  me  to  point  us  to  the  true  conception  of  a  final  decree.  Every  one 
having  only  a  slight  acquaintance  with  legal  proceedings,  knows  that  at 
law  an  interlocutory  judgment  is  predicated  upon  the  default  of  one  of 
the  parties,  and  determines  that  the  party  in  whose  favor  it  is  rendered  is 
entitled  to  recover.  But  it  may,  as  of  course,  be  opened  and  set  aside  on 
terms  in  some  cases — in  others  it  is  Gnal  as  to  the  right  to  recover;  but 
the  extent  of  the  recovery  is  yet  to  be  ascertained  Keeping  this  illus- 
tration in  our  minds  we  should  class  interlocutory  orders  or  decrees  into 
two  kinds.  1st.  Those  which  are  of  course  to  be  opened  and  set  aside 
on  a  party  applying  to  have  it  done  and  complying  with  the  usual  terms  ; 
2d.  Those  which  fix  the  right  of  the  party  to  recover,  and  which  cannot 
be  vacated  by  the  Chancellor,  but  which  still  require  something  farther 
to  be  done  in  order  to  ascertain  and  fix  the  nature,  amount,  or  quantity 
of  the  recovery. 

The  case  of  Travis  v.  Waters,  was  for  a  specific  performance  of  a  con- 
tract, for  the  sale  of  land,  and  for  an  account.  "  In  October,  1808,  the 
Court  decreed  a  conveyance  of  part  of  the  premises,  and  directed  a  Master 
to  take  an  account  of  the  quantity  to  be  conveyed,  and  of  the  payments, 
and  to  ascertain  the  balance  due,  if  any,  to  the  defendant ;  that  the  same 
be  paid,  and  that  the  conveyance  thereupon  be  made  ;  and  the  question 
of  costs  was  reserved  until  the  coming  in  of  the  Master's  report.  From 
this  decree  there  was  an  appeal  to  tiie  Court  of  Errors,  and  the  decree 
was  afBrmed."  The  question  was,  whether  this  decree,  or  that  of  1813, 
upon  the  Master's  report,  made  up  under  its  direction,  was  the  final 
decree  ?  The  Chancellor,  as  I  have  before  said,  held  the  latter  to  be 
final,  and  in  declaring  his  judgment,  assigned  the  reasons  which  I  have 
already  quoted.  Speaking  of  the  decree  of  1808,  he  said,  it  "cannot  be 
so  regarded,  (i.  e.  as  a  final  decree)  for  though  the  right  of  *a  r^^-c 
specific  performance  was  declared  generally,  yet  the  extent  of  '- 
that  right  and  the  conditions  upon  which  it  was  to  depend,  were  not 
ascertained."  An  appeal  was  taken  from  this  decision  of  Chancellor 
Kent,  and  his  decree  affirmed  by  the  Court  of  Errors,  12  John.  Rep. 
600. 

In  the  case  of  the  Methodist  Episcopal  Church  v.  Jaques,  1  John. 
Ch.  Rep.  450,  decided  in  June,  1815,  the  decree  declared  the  principles 
on  which  the  account  should  be  taken,  viz.  :  1st.  That  the  marriage  set- 
tlement of  the  25th  of  September,  is  valid  and  binding  ;  2d.  Tliat  the 
defendant,  J.  D.  J.,  should  account  for  the  whole  personal  estate  of  his 
wife,  which  came  to  his  hands,  but  without  interest;  3d.  That  he  should 
account  for  the  rents  and  profits  which  he  received  of  her  real  estate, 
including  the  leasehold  and  freehold  estate  purchased  in  by  him,  under 
the  operation  of  Heyl's  mortgage.  4th.  No  allowance  was  to  be  made 
to  the  defendant,  J.  D.  J.,  for  the  maintenance  of  his  wife  and  family, 
during  the  coverture.  5th.  That  the  real  estate  left  by  Mrs.  Jaques, 
including  the  lands  in  which  the  Chancellor,  under  his  third  head,  had 
set  up  a  resulting  trust  in  favor  of  her  estate,  should  be  sold,  and  the 
proceeds  brought  into  Court,  to  the  end,  that  the  same  might  be  distri- 
buted  according  to  the  deed  and  will  of  Mrs.  J.  In  2  John.  Ch.  Rep. 
^543,  September,  1817,  the  cause  came  again  before  the  Chancellor  on  a 


310  SOUTH    CAROLIXA    EQUITY    REPORTS.  [*455 

collateral  question  of  practice,  in  relation  to  the  evidence  taken  before 
the  Master;  and  in  3  John.  Ch.  Rep.  1,  a  disposition  of  i)art  of  the 
fund  in  Court  was  decreed.  In  3  John.  Ch.  Rep.  77,  (in  October  and 
November,  1817,)  it  was  again  presented  to  the  Chancellor,  on  excep- 
tions to  the  Master's  report.  Some  of  the  exceptions  were  allowed, 
others  disallowed.  In  the  course  of  his  decree,  he  examined  the  question, 
what  power  of  disposition  a  feme  covert  has  over  her  separate  estate,  and 
decided  that  she  was  to  be  considered  a  feme  sole,  to  the  extent  only  of 
the  power  given  her  by  the  marriage  settlement.  The  case  was  re-com- 
raitted  to  the  Master,  with  instructions :  he  reported  in  conformity 
thereto  ;  and  in  June,  1818,  there  was  a  confirmation  generally.  The 
defendants,  J.  D.  J.  and  R.  J.  appealed  from  this  decree,  and  in  January, 
^  -,  1820,  the  cause  was  heard  in  *the  Court  of  Errors,  17  John.  Rep. 
-J  548.  A  preliminary  objection  was  interposed,  which  raised  the 
question,  which  is  the  final  decree  in  the  cause?  It  was  held  by  all  the 
Court,  that  the  decree  of  June,  1818,  was  the  final  decree.  Ch.  J. 
Spencer,  (at  page,  559,)  said,  "an  appeal  from  a  final  decree  opens  for 
consideration  all  prior  or  interlocutory  orders  or  decrees  any  ivay 
connected  with  the  merits  of  the  final  decree.''^  This  rule  was  concurred 
in  by  the  whole  Court,  and  the  appellants  were  heard  on  the  whole  cause. 
The  Court  reversed  the  Chancellor's  decisions  in  various  respects,  holding 
that  a  feme  covert,  in  respect  of  her  personal  estate,  is  to  be  regarded  as 
Si  feme  sole  in  Equity,  so  far  as  regards  her  power  of  charging  or  dis- 
])osing  of  the  same,  unless  specially  restrained  by  the  instrument  under 
which  acquires  her  separate  estate.  From  the  leading  error  of  the 
Chancellor,  in  this  respect,  (as  the  Court  held  it  to  be)  they  deduced  the 
corollaries  that  the  Chancellor  had  erred,  in  the  2d,  3d,  4th  and  5th 
heads  or  principles  of  the  decree  of  1815,  directing  the  account,  or  so 
much  of  them  as  went  to  charge  the  husband  with  money  or  property, 
given  by  the  wife  to  the  husband  during  coverture — to  establish  a  result- 
ing trust. in  the  lands  purchased  with  the  proceeds  of  choses  in  action, 
once  belonging  to  the  Avife,  but  given  by  her  to  her  husband  ;  or  to 
disallow  the  defendant,  J.  D.  J.,  for  the  maintenance  of  his  wife  and 
family  during  the  coverture  ;  the  wife  having  clearly  agreed  to  bear  the 
ex]iense  thereof  out  of  her  separate  estate. 

From  these  authorities,  it  would  hardly  admit  of  a  question,  that  the 
last  decree  (that  of  Chancellor  Harper)  in  this  case,  was  the  final  decree  ; 
and  not  the  decree  of  Chancellor  James,  and  that  of  the  Court  of  Appeals 
affirming  it.  For,  by  the  latter,  (Chancellor  James's  decree,)  it  was 
decreed,  that  as  the  defendant,  Nesbit,  had  sold  all  the  negroes  but  one, 
"that  he  do  deliver  up  that  one  to  the  executor,  pay  for  the  other  negroes, 
according  to  their  value  at  the  time  of  his  purchase,  and  their  hire,  and 
the  hire  of  the  negro  retained,  from  that  time  to  the  present  time  ;"  and 
"  tliat  the  case  be  referred  to  the  Commissioner,  to  ascertain  the  value 
and  hire  of  the  said  negroes." 

^,-->.-|  *This  decree,  so  far  as  it  related  to  the  value  and  hire  of  the 
'-I  negroes,  is  like  that  in  the  case  of  Travis  r.  Waters  In  both 
a  general  right  of  recovery  is  established,  "yet  the  extent  of  that  recovery" 
is  "not  ascertained."  Compare,  however,  this  case,  in  this  respect,  Avilh 
the  case  of  the  Methodist  Episco]ial  Church  v.  Jaqnes,  and  it  seems  to 
me  that  the  decree  (of  June,  1815^,  in  the  latter  went  further  to  fix  and* 


*J:57]  COLUMBIA,    JANUARY,    1834.  311 

establish  a  rig'ht  of  recovery,  than  the  decree  in  hand.  For  it  will  be 
remembered  that  it.  declared  a  resulting  trust  in  the  land  purchased  by 
the  defendant,  J.  D.  J.,  and  directed  it  to  be  sold,  and  the  money  brought 
into  the  Court  to  be  distributed  according  to  the  deed  and  will  of  Mrs. 
J.  This  was  certainly  as  final  as  that  part  of  Chancellor  James's  decree, 
directing  the  delivery  of  the  negroes.  For  the  decree  establishing  the 
resulting  trust,  denied  the  equitable  title  to  be  in  J.  D.  J.,  and  the  decree 
of  sale  a  direction  for  distribution,  established  the  rights  of  the  com- 
plainants. The  reference  in  each  case  was,  however,  necessary  to  enable 
the  Court  to  "  end  the  controversy,"  and  all  the  decrees  prior  to  the  decree 
confirming  the  Commissioner's  report,  are  to  be  regarded  as  not  conclu- 
sive of  the  right  of  the  parties  to  I'e-examine  them  on  appeal.  For  the 
appeal  from  the  final  decree,  "opens  for  consideration  all  prior  or  inter- 
locutory orders  or  decrees  any  way  connected  with  the  merits  of  the  final 
decree." 

But  it  was  supposed  in  the  argument,  that  the  fact  that  the  case  had 
been  adjudged  by  the  Court  of  Appeals  in  Equity,  was  conclusive  of  the 
rights  of  the  parties.  Independent  of  the  reason  which  I  have  already 
assigned,  why  the  decree  of  the  Court  of  Appeals  cannot  give  character 
as  a  final  decree,  to  Chancellor  James's  decree,  it  may  be  remarked  that 
in  Travis  v.  Waters,  a  decree  of  affirmance  by  the  Court  of  Errors,  in 
New  York,  (which  is  there  as  well  as  the  Court  of  Appeals  is  here,  the 
Court  in  the  last  resort)  was  held  not  to  be  final,  and  it  would,  of  course, 
be  examinable  on  an  appeal  from  the  fin_al  decree. 

I  agree  with  the  respondent's  counsel,  that  if  the  decree  could  be 
regarded  as  sl  final  decree,  that  it  never  could  be  again  examined,  either 
by  appeal,  by  a  bill  of  review,  or  a  *re-hearing.  Haskel  and  r^irn 
others  v.  Raoul,  1  M'C.  Ch.  Hep.  22  ;  Perkins  v.  Lang,  1  M'C.  L  ^^^ 
Cli.  Rep.  30,  note;  Carr  i'.  Green,  Carolina  Law  Journal,  371-  The 
Court  of  Appeals,  under  the  Acts  of  1808  and  1824,  is  the  Court  in  the  last 
resort ;  and  like  the  House  of  Lords  in  Great  Britain,  and  the  Court  of 
Error  in  New  York,  a  decree  by  it  of  affirmance  or  reversal  of  a  final 
decree,  cannot  be  examined  by  a  bill  of  review,  or  on  a  motion  for  re- 
hearing, for  error  in  matter  of  law,  apparent  on  the  face  of  the  decree. 
Li  such  a  case  there  can  be  no  appeal  to  bring  the  decision  in  question, 
for  the  controversy  is  ended.  But  if  the  decree  of  the  Court  of  Appeals 
does  not  end  the  controversy,  and  still  leaves  somcting  to  be  dune,  to 
enable  the  Court  to  pronounce  a  judgment,  it  will  be  examinable  on  an 
appeal  from  such  final  judgment. 

In  the  case  of  Harrison  v.  Jenkins,  decided  December  Term,  182S,  at 
Columbia,  the  defendant  did  not  appeal  from  the  decree  of  the  ClianceUor, 
directing  the  land  in  dispute  to  be  delivered  up,  and  the  defendant  to 
account  for  the  rents  and  profits.  When  the  account  for  the  rents  and 
])rofits  was  about  to  be  taken,  the  complainant  entered  a  disclaimer  for 
the  rents  and  profits,  and  then  the  appeal  was  entered.  It  was  held  that 
the  defendant  was  not  bound  to  appeal,  until  the  account  for  rents  and 
profits  had  been  taken  ;  and  in  that  case,  which  is  one  of  vast  importance 
to  the  profession,  and  ought  to  have  been  long  since  published,  Judge 
Nott,  on  the  question  as  to  the  party's  right  to  ap])eal,  makes  the  fol- 
lowing remarks,  "  I  tliink  that,  generally,  where  the  object  of  the  bill  is 
to  obtain  the  possession  of  a  specific  property,  the  party  may  and  [)erhaps 


312  SOUTH   CAROLINA   EQUITY   REPORTS.  [*458 

ought  to  appeal  from  the  decree,  and  not  to  wait  tlie  event  of  a  reference  to 
take  an  account  of  hire,  or  I'ents  and  profits,  which  are  mere  incidents  that 
necessarily  follow  from  the  decision  of  the  principal  question.  Perhaps 
he  viay  not  lose  his  right  by  thus  loaiting,  unless  some  change  of  property 
or  circumstances  would  render  it  improper  for  the  Court  to  interfere  ;  or, 
unless  by  some  act  or  acquiescence  of  the  party,  he  may  have  waived  his 
right.  But  in  a  case  like  this,  where  the  Court  has  no  jurisdiction  of  even  a 
.  ^Q-i  fibre  of  the  *case,  he  will  be  entitled  to  appeal  as  long  as  there  is 
-^  a  fragment  on  which  he  ea.n  lay  hold." 

The  case  of  Harrison  i;.  Jenkins,  it  seems  to  me,  is  decisive  of  the 
question  we  are  considering.  The  Act  of  1808,  after  directing  that  the 
Circuit  Court  of  Equity  should  be  held  by  any  one  of  the  five  Judges 
who  were  by  it  clothed  with  equitable  powers,  provides  "that  the  orders 
and  decrees  of  the  said  Judges  in  all  cases  wherein  appeals  shall  not  be 
made  to  the  Court  of  appeals,  hereinafter  established,  shall  have  the  same 
effect  with  decrees  sanctioned  by  the  Court  of  Appeals."  The  defendant 
has  lost  the  right  of  appeal  from  the  circuit  decree,  directing  the  land  to 
be  delivered  up,  by  not  giving  notice  of  his  appeal  in  due  time,  and  on 
this  account  the  case  had  been  struck  from  the  appeal  docket,  at  Spring 
Terra,  1828.  The  circuit  decree,  according  to  the  Act  of  1808,  was 
entitled  to  have  the  same  effect  as  if  it  had  been  afSrmed  by  the  Court  of 
Appeals.  In  that  point  of  view,  the  riglit  to  appeal  from  the  final  decree, 
on  the  account  for  the  rents  and  profits,  whether  the  account  was  taken 
or  disclaimed,  would,  if  pursued,  open  all  prior  decrees,  whether  of  the 
Chancellor  or  Court  of  Appeals,  for  consideration,  and  according  to  the 
most  just,  righteous  and  legal  result  of  that  case,  all  prior  decrees  might 
be  reversed. 

So  long  as  a  decree  operates  merely  as  authority,  or  as  the  reasoning 
of  the  Court  to  prove  the  party's  right  in  whose  favor  it  is  pronounced, 
it  may  be  reviewed  and  reversed  whenever  it  comes  up  properly  before 
the  Court  of  Appeals  in  any  of  the  subsequent  stages  of  the  case.  Hall 
V.  Goodwvn,  4  M'C.  442;  Pevton  v.  Smith,  lb.  476;  Dunlap  v.  Craw- 
ford, 2  M'C.  Ch.  Rep.  171;  Lenoir  u  Silvester,  1  Bail.  641;  Rose  v. 
Tidynian,  in  equity,  February  Term,  1832,  Charleston.  The  decrees  of 
Chancellor  Ja,mes,  and  of  the  Court  of  Appeals  in  equity,  being  not  final, 
are  to  be  regarded  as  authority  constituting  a  strong  reason  why  the 
cora])lainants  are  entitled  to  recover;  l)ut  examinable  on  the  appeal  from 
the  final  decree.  I  concede  to  them  not  only  the  respect  of  authority, 
but  also  of  the  veneration  and  admiration  with  which  I  always  have  and 
*irni  ^'^^''"^3'^  shall  regard  several  of  *the  names  then  composing  the 
-J  Court  of  Appeals  in  Equity  ;  Init  still  that  both  of  those  decrees 
are  manifestly  wrong,  is,  I  think,  so  plain  and  obvious,  that  the  only 
reason  which  can  be  given  why  it  has  so  happened,  is,  because  the  case 
was  never  brought  out  before  either  the  Chancellor  or  the  Court  of 
Appeals.  Each  decree  is  predicated  upon  a  statement  of  facts,  which,  if 
the  case  had  rested  upon  them  alone,  would  have  justified  the  decrees. 
But  the  bill  itself  stated  other  facts  which  rendered  those  on  which  the 
decree  were  based  wholly  unimportant,  and  which  showed  that  Price,  the 
executor  had  no  right  to  recover  the  slaves,  and  that  the  only  real  con- 
troversy was  between  Rebecca  Turner  and  the   defendant,  whether  her 


*460]  COLUMBIA,   JANUARY,    1834.  313 

conveyance  to  Mathias  Turner  should  be  set  aside  as  fraudulent.     This 
question  was  not  touched,  not  even  hinted  at  in  either  of  the  decrees. 

I  shall  now  proceed  to  show  that,  taking  everything  for  granted  as 
stated  in  the  bill,  that  Price,  the  executor  has  no  right  to  recover.  The 
bill,  after  setting  out  the  will,  and  the  fact  that  the  witnesses  refused  to 
prove  it,  and  that  administration  was  granted  to  Rebecca  Turner,  who 
under  the  order  of  the  Ordinary,  sold  the  personal  estate  and  purchased  a 
considerable  part  of  it — that  subsequently  the  will  was  proved,  and  the 

executor,  Price,  qualified — that  there  were  no  debts  against  the  testator 

that  the  Ordinary  had  decreed  against  Rebecca  Turner  as  administra- 
trix, a  sura  of  which  she  was  in  arrear  on  account  of  her  administration, 
including  the  price  of  the  negroes  sold  and  pui'chased  hy  her,  refers  to 
a  copy  of  the  decree  filed  as  an  exhibit,  from  which  it  appears,  that 
"Joseph  Price,  executor  of  the  estate  of  John  Turner,  returned  the  cita- 
tion issued  requiring  the  attendance  of  Rebecca  Turner,  administratrix 
of  said  estate,  with  an  acknowledgment  of  the  service,  but  refused  to 
attend — and  at  the  request  of  the  executor,  to  find  each  legatee's  distribu- 
tory  share  of  said  estate  under  the  administration,  find  her  proceedings  to 
stand  as  follows :  An  inventory  was  returned,  but  there  were  orders  from 
the  Ordinary  to  sell  at  different  periods,  the  whole  of  the  goods  and 
chattels  of  the  said  deceased,  which  I  suppose  (says  the  Ordinary)  to 
have  been  done,  and  the  sale  bills  being  returned  of  different  sales  amount 
to  $4,308  15  ;  deduct  *one-third  for  the  widow,  leaves  $2,812  10.  ^^  ., 
There  being  twelve  legatees,  the  twelfth  part  of  that  sum  is  ^ 
$239  34,  exclusive  of  expenses,  there  being  no  return  thereof — which  is 
each  legatee's  distributive,  which  the  executor  ought  to  have  the  govern- 
ment of,  agreeably  to  the  returns  of  the  administratrix,  which  is  the 
decree  of  the  Ordinary."  The  bill  also  set  out  the  conveyance  by  Rebecca 
to  Mathias,  which  she  alleges  to  be  fraudulent  and  which  has  not  been 
tried,  and  the  sale  by  Mathias  to  Nesbit  with  notice. 

In  the  case  of  Benson,  administrator,  v.  Price  and  Byers,  2  N".  &  M'C. 
577,  it  was  held  that  the  sale  by  Rebecca  Turner  as  administratrix  was 
valid.  In  that  case  as  well  as  the  one  before  us,  there  was  no  fraud 
alleged  on  the  part  of  the  administratrix.  In  it  Judge  Colcock  who 
delivered  the  opinion  says,  "when  an  administration  which  has  been 
granted,  is  properly  revoked,  the  latter  administrator  may  sue  the  former, 
for  money  had  and  received,  or  in  trover  for  any  goods  remaining  in  his 
possession  by  him  converted  or  not  duly  administered.  Any  other  doc- 
trine would  be  fraught  with  the  most  monstrous  inconvenience.  The 
community  who  are  not  under  the  authority  of  judicial  power  should  be 
certain  of  protection  in  their  rights,"  In  the  case  of  Foster  c.  Brown, 
1  Bail.  221,  administration  had  been  obtained  by  a  fraudulent  suppres- 
sion of  the  will  in  which  the  executor  as  well  as  the  administrators  con- 
curred ;  at  the  administrators'  sale  the  slave  in  dispute  was  jiurchased  by 
one  of  the  administrators,  from  whose  possession  he  went  into  that  of  the 
defendant,  the  administrator's  son-in-law.  It  was  held  that  "all-acts 
done  in  the  due  and  legal  course  of  administration  are  valid  and  binding 
on  all  interested,  although  it  be  afterwards  revoked.  Nor  can  the  matter 
of  obtaining  the  administration,  whether  fairly  or  fraudulently,  vary  the 
question."  To  this  I  would  add  as  another  necessary  conclusion  from 
the  facts  of  that  case  and  the  reasoning  of  my  brother  Johnson,  that  as 


314  SOUTH    CAROLINA    EQUITY    REPORTS.  [*461 

between  the  executor  and  the  administrator,  the  fact  that  the  latter 
l)ought  at  his  own  sale  would  not,  when  he  had  bona  fide  parted  with 
the  possession  of  the  slave,  render  the  sale  invalid. 
*ir9l  From  these  cases  I  deduce  two  conclusions,  either  of  which  *is 
^-'  fatal  to  the  plaintiff"  Price's  right  of  recovery,  as  executor.  The 
first  is  that  if  he  pursued  the  property  as  unadministered  assets  of  his 
testator,  his  only  remedy  was  by  action  of  detinue  or  trover  at  common 
law.  For  in  this  point  of  view  he  sets  up  a  legal  title,  and  for  its 
enforcement  he  has  plain  and  adequate  remedy  at  law.  That  he  could 
not  recover  at  law,  is  no  reason  why  he  should  come  into  Equity ;  unless 
there  was  some  impediment  at  law  which  prevented  the  assertion  of  his 
legal  title  and  which  this  Court  could  remove.  He  has  stated  none  in  his 
bill.  For  the  fact  that  the  administratrix  might  not  be  able  to  pay  the  dis- 
tributees or  legatees  their  respective  sharf^s  of  the  sum  which  she  was  in 
arrear,  is  no  ground  for  the  interference  of  the  Court  of  Equity  :  it  may 
be  true,  and  the  parties  wholly  remediless,  and  the  Court  of  Equity  might 
be  unable  to  aid  them.  But  if  the  administratrix  was  unable  to  pay,  her 
securities  in  the  administration  bond  we  should  legally  presume  to  be 
sufficient  for  that  purpose  ;  and  in  the  cuse  before  us  it  turns  out  that 
Nesbit,  the  very  defendant  sought  to  be  charged  by  this  bill  with  the 
value  of  the  slaves,  is  the  security  of  the  administratrix.  So  there  is 
nothing  in  law  or  fact  in  this  respect  to  give  color  to  the  jurisdiction  of 
the  Court.  The  second  conclusion  from  the  cases  cited,  is  that  Price's 
legal  title  as  executor  is  defeated.  It  does  not  lie  in  the  mouth  of  the 
executor  to  say  to  the  administrator  whom  he  may  succeed,  "you  pur- 
chased at  your  own  sale  and  therefore  your  title  is  defeated."  The  lega- 
tees may  if  they  choose  say  so  :  it  is  at  their  election  whether  the  sale  is 
to  be  set  aside  or  supported.  If  the  administrator  had  the  slaves  in 
possession  the  executor  might  be  entitled  to  recover — his  legal  right 
would  be  paramount  to  that  of  the  administratrix,  on  showing  that  she 
liad  not  accounted  for  the  price.  But  until  then,  according  to  Brown  r. 
Foster,  he  could  not  recover.  It  can  be  shown  that  Price  has  no  title 
to  recover  the  slaves  from  the  administratrix.  For  on  looking  through 
the  proceedings  it  appears,  that  exclusive  of  her  own  share,  she  or 
Matthias  Turner  paid  to  the  legatees  more  than  the  value  of  the  slaves 
in  dispute. 

The  conveyance  by  the  administratrix  to  Matthias  Turner  is  to  be 
^  ,po-i  regarded  as  fair  and  bona  fide,  according  to  its  *terms,  until  the 
-"  contrary  is  shown,  and  for  present  purposes  is  conceded  to  be  so 
by  the  former  decrees.  This  was  before  the  Act  of  1824,  and  according 
to  the  case  of  Legge  v.  Magwood,  State  Rep.  116,  her  conveyance  con- 
veyed to  the  defendants  the  legal  estate  in  the  said  slaves.  This  too  at 
once  ousts  the  executor's  title,  which  is  altogether  a  legal  one.  The 
legatees  might  possibly  set  up  the  trusts  of  the  will  against  the  adminis- 
tratrix's voluntary  donee,  or  her  alienee  with  notice. 

If  the  purchase  by  the  administratrix  at  her  own  sale  may  be  set  aside, 
it  is  equally  clear  that  it  may  be  confirmed.  If  the  executor  could  have 
raised  the  question,  the  decree  of  tlie  Ordinary,  which  as  to  him  is  con- 
clusive, must  be  regarded  as  a  confirmation  of  the  sale.  Conceding  for 
the  present,  that  the  executor  had  the  right  to  set  aside  the  sale,  and 
pursue  the  specific  property — or  to  have  an  account  for  its  value,  he  has 


*463]  COLUMBIA,   JANUARY,    1834.  315 

elected  the  latter,  in  the  account  before  the  Ordinary,  and  is  bound  by 
his  decree,  which  estops  him  from  averring  that  the  sale  was  void. 

On  the  showing  contained  in  the  bill,  that  there  were  no  debts  against 
the  deceased,  the  executor  would  have  been  bound  in  Equity  to  assent 
to  the  legacies.  Rebecca,  Ephraira  and  John,  three  of  the  negroes  iu 
dispute,  were,  by  the  residuary  clause,  bequeathed  to  Rebecca  Turner 
"during  her  natural  life,  for  her  support  and  maintenance."  In  Equity 
she  would  be  regarded  as  the  owner  of  the  slaves,  and  be  entitled  to  the 
possession.  If  her  conveyance  to  Matthias  was  bona  fide,  he  too,  and 
of  course  his  alienee,  would  be  entitled  to  the  possession  during  the  life 
of  the  said  Rebecca.  The  bequest  being  for  her  support  and  mainte- 
nance, would  not  lessen  her  estate;  to  accomplish  its  purpose  a  sale 
might  be  necessary.  It  is  true  that  her  alienee,  under  the  circumstances 
in  this  case,  if  his  title  alone  depended  upon  her  title  as  legatee,  ought 
to  be  compelled  to  give  security  that  the  property  should  be  forthcoming 
at  her  death.  This,  however,  shows  that  if  Price  had  been  entitled  to  a 
present  decree  for  John  and  Sarah,  he  was  not  for  Rebecca,  Ephraim 
and  John. 

The  claims  of  the  claimants,  Price  and  Rebecca  Turner,  *are  r^ if. < 
totally  distinct  and  hostile,  and  ought  never  to  have  been  united  ■- 
in  the  same  bill.  Indeed  they  present  two  totally  distinct  causes,  requiring 
different  proofs  and  different  decrees  ;  and  on  this  ground,  as  Rebecca 
Turner's  case  has  been  drop])ed  and  Price's  pursued,  which  is  now  found 
to  be  unsustainable,  the  bill  might  be  dismissed.  But,  looking  to  the 
antiquity  of  the  case,  and  the  possibility  that  the  errors  of  the  case  since 
1822,  are  not  to  be  attributed  to  the  complainants,  and  especially  as  the 
defendant,  Nesbit,  in  his  brief  and  imperfect  answer,  did  not  make  the 
objection  that  he  was  called  on  by  the  same  bill  to  answer  to  two  distinct 
cases,  we  shall  dismiss  the  bill  as  to  the  complainant  Price,  executor  of 
John  Turner,  and  retain  it  for  all  other  purposes. 

It  is  said  that  Rebecca  Turner  or  Matthias  Turner  paid  to  the  lega- 
tees of  John  Turner,  deceased,  the  wdiole  or  the  greater  part  of  their 
shares  of  the  value  of  the  said  slaves.  This  fact  makes  it  necessary  that 
they  if  alive,  or  if  dead  their  legal  representatives,  should  be  parties. 
On  looking  into  the  will,  it  appears  that  the  negro  man  Job  was  be- 
queathed to  John,  and  the  negro  woman  Sarah,  to  Sally  Turner,  during 
their  respective  lives,  and  the  residue  of  the  estate  to  Rebecca  Turner, 
and  at  her  death  to  be  equally  divided  among  all  the  testator's  children. 
Sally  Turner  died  before  the  bill  was  filed,  and  her  interest  under  the 
will,  passed,  by  the  residuary  clause,  to  Rebecca  for  life.  John,  I  pre- 
sume, is  alive,  but  is  a  lunatic,  he  ought  to  be  represented  by  his  com- 
mittee. Rebecca  Turner,  we  are  informed,  is  dead— it  is  therefore  neces- 
sary that  administration  should  be  taken  out  on  her  estate,  and  a  bill  of 
revivor  and  supplement  filed,  before  any  other  or  further  order  or  pro- 
ceeding (save  that  which  is  about  to  be  made)  can  be  made  in  the  cause. 
We  abstain  from  any  comment  on  the  case,  which  may  be  made  out 
under  the  bill  of  revivor  and  supplement. 

It  is  ordered  and  decreed  that  the  decrees  heretofore  pronounced  in 
this  cause  be  reversed,  and  that  the  bill,  so  ftir  as  Josei)h  Price,  executor 
of  John  Turner,  deceased,  is  concerned,  be  dismissed ;  that  the  bill  for 


316  SOUTH   CAROLINA   EQUITY    REPORTS.  [*464 

^  rn  all  other  purposes,  be  retained  ;*  and  that  the  cause  be  remanded 
-I  to  the  Circuit  Court,  with  directions  that  upon  administration 
being  taken  out  on  the  estate  of  Rebecca  Turner,  deceased,  and  a  bill  of 
revivor  and  supplement  filed  by  her  administrator,  to  which  the  legatees 
of  John  Turner,  deceased,  if  alive,  or  if  dead,  their  legal  representatives 
shall  be  parties,  complainants  or  defendants,  as  they  may  elect,  setting 
out  the  facts  to  which  allusion  has  already  been  made,  and  requiring  the 
present  defendants  to  answer  as  to  them,  the  cause  be  heard  de  novo  on 
the  bills,  answers  and  proof,  without  any  prejudice  to  any  of  the  said 
parties  from  any  of  the  former  decrees. 

Johnson,  J.,  concurred. 


.John  Stoney,  John  Magrath,  and  others,  v.  Henry  Shultz,  Thomas 
Harrison,  and  others. 

The  general  rule  that  there  is  no  implied  warranty  in  sales  made  by  a  sheriff  or 
other  ministerial  officer,  applies  exclusively  to  the  quality  and  properly  of  the 
thing  sold  ;  it  does  not  apply  to  cases  where  the  sheriff  or  other  officer  assumes  an 
authority  where  none  is  given  by  law.  In  every  case  there  is  an  implied  covenant 
on  the  part  of  the  sheriff,  that  he  has  authority  to  sell ;  and  the  recital  in  his 
deed  of  his  authority,  as  effectually  estops  Lim,  as  if  it  had  been  an  express  cov- 
enant. [*493] 

Under  the  Act  of  1791,  the  Court  of  Law  has  no  authority  to  foreclose  a  mortgage  of 
lands  where  the  mortgagor  is  out  of  possession  :  and  the  sheriff  having  in  such 
case,  under  an  order  of  the  Court  of  Law,  sold  the  mortgaged  premises  and 
received  the  purchase  money  and  applied  it  to  the  satisfaction  of  the  mort- 
gage and  a  judgment  against  the  mortgagor,  the  sale  is  void,  and  the  purchaser 
has  the  right  to  be  reimbursed  the  sura  paid.  Primarily  the  sheriff  is  liable,  as 
also  are  the  parties  who  received  the  benefit,  and  at  whose  instance  the  sale  was 
made  ;  but  in  order  to  avoid  multiplicity  and  circuity  of  action  in  the  Court  of 
Law,  this  Court  will  order  the  lands  to  be  sold  to  reimburse  the  purchaser,  and 
in  relief  of  the  mortgage  and  judgment  creditor.  [*495] 

Judgment  creditors  of  a  co-partnership  mny  be  compelled  by  the  purchasers  of  the 
individual  property  of  one  of  the  partners,  to  exhaust  the  partnership  property 
before  they  resort  to  the  property  purchased  by  them  ;  and  if  the  creditors  release 
the  partnership  property  from  the  lien  of  their  judgments,  they  are  without  any 
remedy  against  the  purchasers.  [Ob.  diet.)  [*496j 

At  common  law  the  legal  estate  vests  in  tiie  mortgagee  ;  after  condition  broken  he 
is  entitled  to  the  possession  of  the  land,  and  may  maintain  a  possessory  action 
against  any  one  in  possession  and  is  entitled  to  receive  the  rents  from  the  tenants. 
The  Act  of  1791,  (1  Faust,  63)  has  made  no  change  in  the  common  law  in  this 
respect,  where  the  mortgagor  is  out  of  possession  ;  the  proviso  of  the  Act  renders 
it  wholly  inoperative  when  the  mortgagor  is  out  of  possession ;  and  therefore  in 
such  case  the  mortgagee  still  has  a  right  to  receive  and  retain  the  rents,  having 
given  notice  of  the  mortgage  to  the  tenants  in  possession.  [*497] 
A  sale  and  conveyance  of  land  by  the  sheriff,  in  pursuance  of  an  order  from  the 
Court  of  Law  for  the  foreclosure  of  a  mortgage,  when  the  mortgagor  was  out  of 
possession,  although  void  as  official  acts,  for  the  want  of  authority  in  the 
Court  of  Law  to  make  the  order,  will  still  operate  as  an  assignment  of  the  legal 
estate  of  the  mortgagee.  The  sheriff  will  be  regarded  as  the  private  agent  of  the 
mortgagee,  and  although  his  authority  be  only  by  parol,  the  answer  of  the  mort- 
gagee admitting  the  facts,  is  a  sufficient  compliance  with  the  Statute  of  Frauds, 
[*499] 

In  ordering  a  sale  of  mortgaged  premises  which  had  been  sold  by  the  mortgagor 
subsequent  to  the  mortgage,  in  lots  to  several  purchasers  at  different  periods,  the 
Court  directed  the  sale  of  the  lots  in  the  order  in  which  they  had  been  conveyed 


*465] 


COLUMBIA,    JANUARY,    1834.  317 


— beginning:  with  the  last,  and  proceeding  according  to  the  order  of  the  dates   to 
the  first  [*5003 

Allowing  credit  on  a  sale  of  land  for  the  foreclosure  of  a  mortgage,  is  not  a  viola- 
tion of  the  obligation  of  contracts.  [*500] 

Order  by  the  Ch;iiicellor  for  the  publication  of  notice  to  creditors  to  come  in  and 
prove  their  demands  reversed,  sufficient  notice  having  been  previously  given 
[*5()0] 

The  mortgagee  is  only  entitled  to  the  land  and  the  rents  accruing  from  it  in  the 
condition  it  was  when  mortgaged  ;  and  where  the  mortgagor  had  sold  the  land 
and  the  purchasers  had  improved,  and  thereby  increased  the  rents,  the  Court 
directed  the  rents  to  be  so  apportioned  that  the  mortgagee  should  only  receive  the 
ground  rents.  [*501] 

On  the  5tli  of  May,  1823,  Henry  Shnltz  purchased  398  acres  of  land 
called  the  Leigh  Tract,  from  Whitefield  Brooks,  Commissioner  in  Equity, 
for  $15,500,  and  mortgaged  the  same  for  the  money.  The  mortgai^e 
was  not  paid,  but  Shultz  built  a  town  on  the  land,  and  added  it  to  the 
town  of  Hamburg;  and  on  the  4th  June,  1824,  mortgaged  the  same  land 
vfhh.  the  exception  of  one  lot,  to  W.  E.  Snowden,  for  $36,000.  On  the 
3d  December,  1824,  W.  E.  Snowden  failed,  and  assigned  this  mortgage 
among  other  things  to  John  Stoney  and  John  Magrath,  in  trust  for  his 
creditors.  On  the  18th  January,  1825,  Shultz  sold  at  public  sale  a  num- 
ber of  lots  in  Hamburg,  being  part  of  the  mortgaged  land.  The  sale 
was  continued  on  the  22d  February  and  28th  March,  1825,  and  many 
lots  were  disposed  of  By  the  terms  of  the  sale  half  the  purchase-money 
was  to  be  paid  in  cash,  and  all  notes  or  debts  of  Henry  Shultz  to  be 
received  in  payment;  the  other  half  to  be  secured  by  *bonds  r^^nn 
bearing  interest  at  seven  per  cent,  the  interest  payable  annuallj^,  L'  '^" 
and  the  principal  at  the  option  of  the  purchaser. 

Afterwards  Mr.  Brooks  sued  on  Shultz's  bond  and  recovered  a  judg- 
ment at  law,  and  at  Spring  Term,  1827,  an  order  was  made  by  consent 
for  the  sale  of  the  premises,  on  the  first  Monday  in  June  next,  on  a  credit 
of  six  and  twelve  months,  the  titles  to  be  signed  but  not  delivered  ;  and 
in  case  of  failure  of  the  purchaser,  the  sheriff  to  re-sell  under  the  same 
levy.  On  the  first  Monday  in  June,  1827,  the  sheriff  sold,  and  Shultz 
became  the  purchaser  at  $55,000.  He  did  not  pay  any  money,  and  on 
the  4Lh  December,  1827,  the  sheriff,  by  the  directions  of  the  plaintiff, 
exposed  the  premises  to  sale  for  cash,  when  John  Williamson  became  the 
purchaser  for  $22,000.  The  purchase  was  made  on  the  joint  account  of 
John  Williamson,  John  Stoney,  John  Magrath,  Paul  Fitzsimmons  and 
C.  Breighthaupt.  The  sheriff  received  the  money,  made  him  a  deed  for 
the  land,  and  out  of  the  money  received  from  Williamson,  paid  Mr 
Brooks  principal,  interest  and  costs,  and  paid  the  judgment  of  Augustus 
Moore  v.  Henry  Shultz.  Williamson  attempted  to  take  possession — 
some  of  the  tenants  attorned  to  him,  and  others  refused,  against  whom 
actions  at  law  were  commenced. 

At  October  Term,  1828,  Henry  Shultz  was  admitted  to  the  benefit,  of 
the  Insolvent  Debtors'  Act,  and  assigned  all  his  estate,  including  his  right 
in  the  398  acres,  to  Thomas  Harrison,  who  refused  the  trust. 

In  April,  1830,  Law  Journal,  184,  one  of  Williamson's  actions  was 
tried  at  Edgefield,  and  the  plaintiff  was  nonsuited,  on  the  ground  that  the 
sale  by  the  sheriff  was  irregular  and  void,  and  the  Court  of  Ajipeals  dis- 
missed the  motion  to  set  aside  the  nonsuit. 


318  SOUTH   CAROLINA   EQUITY    REPORTS.  [*466 

Williamson  died,  and  John  Stoney  and  John  Magrath  proved  his  will. 
October  4th,  1830.  Bill  filed  by  John  Stoney,  John  Magrath,  and 
W.  E.  Snowden,  against  Henry  Shultz,  Harrison  and  the  pnrchasers  of 
Hamburg  lots,  twenty-six  in  number,  prays  the  appointment  of  a  trustee 
in  place  of  Thomas  Harrison,  and  that  Shultz  may  be  restrained  from 
suing  the  tenants  of  Williamson.  That  an  account  may  be  taken  of  the 
amount  of  the  incumbrances,  and  that  the  premises  may  be  sold,  and 
Suowden's  mortgage  paid. 

^  .„K-,  *October  8th,  1830.  Bill  filed  by  John  Stoney,  John  Magrath, 
-I  Paul  Fitzsimons,  and  C.  Breighthaupt,  against  Henry  Shultz, 
Whitefield  Brooks,  and  Thomas  Harrison,  prays  that  they  may  have  the 
benefit  of  Brooks'  mortgage  and  of  the  judgment,  to  which  the  money 
paid  by  Williamson  was  applied.  That  Thomas  Harrison  may  execute 
his  trust,  or  that  another  trustee  be  appointed. 

4th  December,  1830.  An  order  was  made  restraining  Shultz  from  suing 
Williamson's  tenants ;  and  appointing  Ker  Boyce  and  Thomas  Harrison, 
trustees  for  the  insolvent  estate  of  Henry  Shultz,  authorizing  them  to 
take  possession  of  all  the  estates  included  in  Shultz's  schedule,  saving  to 
the  purchasers  from  Shultz,  their  rights. 

8th  December,  1830.  Plaintiffs  amended  the  bills  by  making  Boyce 
and  Harrison  parties,  and  praying  that  the  estate  of  Shultz  might  be 
distributed,  according  to  the  Insolvent  Debtors'  Act,  and  that  the  trustees 
may  execute  their  trust. 

1st  February,  1831,  The  trustees  advertised  for  all  demands  against 
Shultz  to  be  rendered  to  them,  which  was  continued  for  three  months. 

2d  May,  1831.  Bill  filed  by  John  Stoney  and  John  Magrath,  against 
the  purchasers  from  Shultz,  states  that  Shultz  was  indebted  to  insolvency, 
to  a  great  number  of  persons  who  recovered  judgments  against  him,  prior 
to  January,  1825.  That  the  lands  in  the  hands  of  the  purchasers  are 
liable  to  those  judgments,  as  well  as  the  mortgages  of  Brooks  and 
Snowden.     Prays  for  injunction  and  receiver. 

June,  1831.  A  reference  was  ordered,  and  the  Commissioner  was 
ordered  to  ascertain  the  debts  and  assets  of  Henry  Shultz. 

20th  July,  1831.  A  dispute  having  arisen  between  Mr.  Whitner,  one 
of  the  defendants,  and  his  tenant,  as  to  the  order  of  December,  1831,  the 
Chancellor  explained  the  order  by  declaring  that  Mr.  Whitner  had  liberty 
to  proceed  against  his  tenant,  who  had  attorned  to  Williamson. 

1st  October,  1831.  Bdl  filed  by  John  Stoney,  John  Magrath,  Paul 
Fitzsimons  and  C.  Breighthaupt,  against  B.  F.  Whitner,  James  Clark, 
B.  M.  Blocker,  Maurice  Johnson  and  James  Cobb,  sets  forth  the  debts 
*4681  ^^^  ^^  Shultz  on  mortgages  *and  judgments  prior  to  January, 
-^  1825 — the  assignment  of  the  judgments  to  Paul  Fitzsimons,  on 
the  joint  account  of  himself,  Williamson,  and  the  other  complainants  ; 
Shultz's  sale  to  the  defendants ;  the  sale  by  the  sheriff,  the  purchase  of 
Williamson  and  his  entry.  That  the  tenants  of  the  defendants  attorned 
to  him  ;  that  since  the  Court  have  determined  that  Williamson  did  not 
acquire  the  fee  simple,  he  must  be  considered  as  a  mortgagee  in  posses- 
sion, and  accountable  for  the  rents  and  profits,  but  the  defendants  have 
commenced  actions  against  the  tenants  for  the  recovery  of  double  rents, 
damages,  &c. ;  that  the  defendants  are  bound  to  contribute  to  pay  off 
the  mortgages  and  judgments  ;  and  that  the  rents  received  by  Williamson 


*468]  COLUMBIA,   JANUARY,    1834.  319 

are  a  proper  subject  of  account,  between  complainants  and  defendants. 
That  the  land  is  not  sufficient  to  discharge  the  liens  upon  it.  That  the 
defendants  unconscieiitiously  retain  possession,  though  they  have  not  such 
a  title  as  will  enable  the  assignees  of  Shultz  to  compel  them  to  pay  the 
purchase-money,  and  run  away  with  the  rents,  which  ought  to  be  applied 
to  the  payment  of  the  creditors  of  Shultz,  who  have  their  liens  ou  the 
land. 

25th  October,  1831.  An  injunction  was  granted,  preventing  the  de- 
fendants named  in  the  bill  of  I'd  May,  1831,  from  suing  the  tenants  of 
Williamson,  or  persons  holding  under  him. 

December,  1831.  Harrison  and  Boyce  were  appointed  receivers  for  all 
the  Hamburg  lots.  But  a  proviso  was  inserted  that  this  order  should 
not  extend  to  purchasers  from  Shultz  in  actual  possession  ;  and  the  trus- 
tees of  Mrs.  Whitner  were  allowed  to  retain,  on  giving  security.  This 
order  was  further  explained  by  an  order  of  28th  January,  1832,  to  the 
same  effect. 

The  answers  of  K.  Boyce  and  T.  Harrison,  submit  to  perform  the 
order  of  the  Court.  The  answer  of  Mr.  Brooks  admits  the  sale  and  the 
receipt  of  the  money  due  on  the  mortgage  from  Williamson  ;  avers  that 
he  has  paid  it  over  without  notice  ;  that  one-ninth  part  thereof  was  paid 
to  the  complainants,  as  assignees  of  Suowden  ;  he  has  no  objection  to  a 
decree,  setting  up  the  mortgage  in  favor  of  the  plaintiffs,  and  insists  he 
is  improperly  made  a  party. 

*B.  F.  Whitner  claims  three  lots — insists  that  one  is  the  lot  r^.nq 
excepted,  in  the  mortgage  to  Snowden — that  the  other  two  were  '- 
bought  on  the  18th  of  January,  182.5 — that  the  sale  was  advertised  many 
weeks — that  Shultz  reserved  part  of  the  lots  for  the  payment  of  Brooks  — 
that  he  owned  one-ninth  part  of  that  mortgage  himself.  He  understands 
that  his  purchase  was  secure  from  that  mortgage.  Shultz  stated  that  he 
had  given  Suowden  a  mortgage,  but  it  was  not  recorded  in  time,  and 
would  not  affect  the  sale,  and  that  Snowden,  who  was  present,  consented 
to  the  sale.  That  Snowden  himself  was  a  purchaser,  and  there  appeared 
the  utmost  privity  between  him  and  Shultz  ;  half  the  purchase-money 
was  not  to  be  paid,  unless  both  parties  agreed.  The  defendant  supposed 
Snowden  was  to  be  paid  by  his  purchases,  or  out  of  the  reserved  property 
or  the  reserved  payments.  That  the  lots  sold  high  ;  two  of  them  were 
bought  by  the  defendant  for  $1,600.  He  paid  half  the  purchase-money, 
and  complied  with  the  terms,  by  improving.  That  he  knew  Snowden  had 
stopped  payment,  but  did  not  know  he  had  assigned  :  and  the  first' public 
notice  by  his  assignees  was  on  the  10th  February,  1825.  He  trusts  that 
the  Court  will  not  suffer  the  assignment  to  avoid  Suowden's  consent  to 
the  sale,  and  operate  so  great  a  fraud  to  bona  Jide  purchasers. 

That  he  was  in  peaceable  possession,  and  rented  to  Holmes,  Gray,  and 
Tatom — that  the  plaintiffs  prevailed  on  his  tenants  to  withhold  the  pos- 
session and  rents  of  the  premises  ;  that  the  defendant  sued  his  tenants, 
and  the  case  was  delayed,  first  to  await  the  trial  of  the  action  at  law,  and 
since  by  pretence  of  an  injunction.  That  one  of  his  tenants  has  become 
insolvent,  and  the  circumstances  of  the  others  are  doubtful.  He  prays 
that  the  plaintiffs  be  decreed  to  pay  his  rents. 

B.  F.  Whitner's  answer  to  the  bill  of  October,  1831,  states  that  B.  F. 
Whitner  &  Co.,  about  the  28th  July,  1825,  bought  lot  No.  1,  for  $7,000, 


320  SOUTH  CAROLINA    EQUITY    REPORTS.  [*469 

and  paid  for  it  money,  goods,  work,  labor,  &c.,  and  in  taking  up  a  debt 

of  Shiiltz  to  Weyraan.     That  in they  bought  two  unimproved 

lots  for  $1,600  dollars,  and  paid  $800.     That  these  lots  were  seized  and 
♦i-m  ^      '  ^^^  *couveyed  by  the  sheriff  to  Morgan  P.  Earle,  and  after- 

'  -'  wards  by  him  to  J.  N.  Whitner,  and  this  defendant,  in  trust  for 
his  family,  insists  his  purchase  was  fair  and  bona  fide.  That  the  trust 
estate  is  liable  to  pay  the  $800,  and  he  has  always  been  willing,  provided 
his  title  is  cleared  up.  That  Williamson  and  his  agents  claim  to  be.  the 
owners  of  the  Lehigh  tract,  under  color  of  a  title  from  Thurmond,  sheriff 
of  Edgefield,  although  they  were  notified,  by  Shultz,  that  the  sale  was 
illegal,  and  they  have  no  equitable  right  to  set  up  the  mortgage,  because 
they  bought  with  notice.  That  they  colluded  with  his  tenants  to  get 
possession,  and  prevented  him  from  recovering,  by  postponing  the  trial. 
That  the  rents  were,  for  the  front  stories  on  No.  1,  $500,  and  for  the 
lower  story,  a  rent  equal  to  $2fi0.  For  the  tavern  on  No.  1,  and  the 
stables  on  the  other  two  lots,  $G00 — in  all  $1,350,  when  the  plaintiffs 
interfered.  That  he  claims  double  rent,  viz.:  from  Tatom,  from  4th  De- 
cember, 1827,  to  the  1st  August,  1831,  and  from  Holmes  and  Gray  from 
the  1st  October,  1828,  to  the  1st  August,  1831.  That  by  the  plaintiff's 
admission,  they  are  liable  for  the  tenants,  and  bound  to  account  to  the 
defendants  for  rents  and  double  rents,  amounting  to  $8,177.  That  Tatom 
is  dead — insolvent ;  Gray  has  also  died,  and  is  believed  to  be  insolvent. 
He  hopes  to  prove  that  the  premises  were  restored  to  him  by  the  consent 
of  the  plaintiffs,  or  their  agent. 

That  the  judgments  which  the  plaintiffs  claim,  are  founded  on  Bank 
bills,  issued  by  the  Augusta  Bridge  Company.  That  in  182G  they  filed 
a  bill,  alleging  that  they  or  many  of  them  were  fraudulent,  or  kejtt  open 
by  collusion,  and  an  injunction  was  granted  against  them.  That  the 
plaintiffs  afterwards,  in  1828,  purchased  up  these  judgments,  on  specula- 
tion, for  twenty-five  or  thirty  cents  on  the  dollar,  or  thereabouts.  That 
the  above  bill  was  then  dismissed,  and  another  filed  against  the  Bank  of 
the  State  of  Georgia,  charging  that  these  judgments  constituted  an  equit- 
able lien  on  the  Augusta  Bridge,  and  praying  that  a  receiver  of  tolls 
might  be  appointed.  That  this  bill  was  afterwards  dismissed,  in  conse- 
quence of  a  compromise  between  the  Bank  and  the  plaintiffs,  by  which 
the  Bank  refunded  to  the  plaintiff's  the  sum  they  had  paid  for  the  judg- 
^  ,N,,-j  ments,*  it  being  agreed  at  the  same  time,  that  the  judgments 
-^  should  be  kept  open  to  aid  the  plaintiffs  in  their  speculations  on 
Hamburg,  if  necessary.  That  Shultz  made  a  compromise  with  the  Bank 
in  1829,  in  regard  to  his  claims  on  the  Augusta  Bridge,  which  included 
these  same  judgments.  So  that  if  they  ever  constituted  a  lien  on  the 
property  now  in  dispute,  they  have  been  long  since  satisfied,  and  are  now 
kept  open  by  connivance  of  the  parties,  for  the  purpose  of  fraud. 

That  the  bill  filed  by  the  assignees  of  Siiowden,  does  not  make  the 
plaintiffs  parties,  so  as  to  make  them  account  for  mesne  profits,  and  a 
very  small  part  of  these  profits  has  accrued  on  the  property  embraced  iu 
the  mortgage  to  Snowden,  to  which  any  pretence  of  claim  can  be  set  up. 
He  prays  that  the  plaintiffs  may  be  decreed  to  pay  the  rents  and  profits 
they  are  wrongfully  withholding  from  him. 

The  answers  of  the  other  defendants,  Holloway,  Marsh,  Johnson,  Co- 


*471]  COLUMBIA,    JANUARY,    1834.  321 

vington,  Blodgett,  Clark,  Knight,  Hall,  and  Ware,  rely  on   the  same 
grounds. 

The  answer  of  James  Cobb  relies  on  a  lease  of  the  16th  January,  1824, 
from  Shultz  to  Warhara  Cromwell,  at  $500  per  annum  ;  to  pay  a  debt  of 
$3,000,  defendant  took  an  assignment  from  Cromwell.  He  insists  that 
this  lot  is  excepted  in  Snowden's  mortgage — that  the  rents  from  this  lot, 
while  Williamson  had  possession,  were  worth  $970  per  annum.  He  claims 
eighteen  lots  as  purchaser,  in  January,  1825. 

Mr.  Terry,  the  Commissioner  of  the  Court,  by  his  report,  dated  

,  found  the  sum  due,  on  the  account  of  the  mortgage  to  Brooks,  and 

a  judgment  of  Augustus  Moore,  which  was  paid  off  by  the  money  received 
from  Mr.  Williamson.  He  found  the  amount  due  on  the  judgments 
against  Henry  Shultz,  assigned  to  Williamson,  to  be  $8,720  ;  and  the 
amount  on  Bridge  bill  judgments,  to  be  $33,774 — and  the  amount  due  on 
.  Snowdon's  mortgage. 

The  report  states  that  he  had  given  notice  by  the  newspapers  for  all 
creditors  to  come  in,  and  sets  forth  a  schedule  of  all  the  debts  which  had 
been  proved. 

The  report  finds  that  the  assets  to  pay  these  debts  consist*  of  r^.^,g 
three  hundred  and  ninety-eight  acres,  of  which  the  principal  value  ■-  '*" 
consists  of  the  lots  of  Hamburg.  That  about  forty  of  these  lots  are  im- 
proved, and  they  are  nearly  all  claimed  by  purchasers  from  Shultz,  in 
1825  and  1826,  a  statement  of  which  is  annexed  to  the  report.  That 
these  purchasers  had  given  evidence  of  the  damages  they  had  sustained 
by  Williamson's  interference,  and  of  Snowden's  assent  to  the  sale  in 
1825. 

The  plaintiffs  excepted,  that  the  report  contained  a  judgment  of  Otis  & 
Lawrence,  in  the  list  of  debts,  which  had  not  been  proved  ;  and  set  forth 
a  list  of  debts,  in  the  order  in  which  they  should  be  paid,  as  the  Commis- 
sioner had  found,  and  ought  to  have  reported  them. 

These  several  causes  were  heard  as  one,  by  Chancellor  Johnston,  at 
Edgefield,  on  the  19th  June,  1832. 

Evidence  was  given  to  invalidate  the  Bridge  bill  judgments,  which  were 
assigned  in  1827  to  Paul  Fitzsimons,  on  account  of  himself  and  the  other 
plaintiffs.  Payment  of  these  judgments  is  resisted  on  the  ground  that 
they  are  partnership  debts  of  John  M'Kinnie  and  Henry  Shultz,  and 
should  be  paid  out  of  the  Augusta  Bridge,  as  partnership  property;  and 
that  the  plaintiffs  have  released  the  Bridge,  and  thereby  parted  from  their 
rights.     This  defence  depends  on  the  following  case  : 

On  the  1st  of  July,  1816,  John  M'Kinnie  and  Henry  Shultz  formed  a 
partnership,  under  the  name  of  the  Bridge  Company,  and  issued  pnper 
money,  called  "  Bridge  Bills."  The  stock  of  the  company  consisted  of 
the  bridge,  valued  at  $75,000  ;  houses  in  Augusta,  valued  at  $25,000,  and 
lands  in  Carolina,  valued  at  $5,000.  On  the  21st  April,  1818,  Shultz, 
in  consideration  of  $63,000,  and  a  covenant  to  save  him  harmless  from 
the  partnership  debts,  conveyed  all  his  interest  in  the  Bridge  Company 
to  Barna  M'Kinnie,  and  retired  from  the  concern,  which  was  announced 
on  the  10th  February,  1819.  On  the  12th  March,  1819,  John  &  Barna 
M'Kinnie  executed  their  bond  to  Shultz,  in  $500,000,  conditioned  to  save 
him  harmless  from  the  Bridge  bills.  On  the  10th  June,  1819,  J.  &  B. 
M'Kinnie  mortgaged  the  bridge,  with  other  property,  to  the  Bank  of  the 
Vol.  L— 21 


322  SOUTH   CAROLINA   EQUITY   REPORTS.  [*4T2 

State  of  Georgia,  to  secure  $90,000.  Under  an  execution  against  Barna 
*i'7^1  M'Kinnie,  *the  bridge  was  sold,  and  bought  by  the  Bank.  In  May, 
-^  1821,  the  mortgage  of  J.  &  B.  M'Kinnie  was  foreclosed,  and  the  prop- 
erty advertised  for  sale.  On  the  9th  May,  1821,  Henry  Shultz  and  C. 
Breighthaupt  filed  their  bill  in  the  United  States  Court  at  Savannah,  to 
enjoin  the  sale  of  the  Bridge,  insisting  that  it  was  partnership  property  and 
should  be  applied  to  pay  Bridge  bills.  C.  Breighthaupt  joined  in  the 
suits,  as  a  holder  of  Bridge  bills.  The  injunction  was  granted,  and  on 
the  28th  December,  1821,  an  order  was  made  by  consent,  appointing  F. 
Walker  and  C.  Fitzsiraons,  Commissioners,  to  take  possession  and  sell 
the  Bridge,  and  requiring  all  parties  to  join  in  a  power  of  attorney  to 
them.  This  was  done,  and  they  sold  the  bridge  on  the  28th  November, 
1822,  for  $70,000,  to  the  Bank  of  Georgia,  who  paid  the  money,  which 
was  deposited  in  their  vaults,  to  abide  the  events  of  the  suits.  By  another 
order  $5000  were  directed  to  be  paid  to  the  plaintiffs,  upon  security  to. 
account  for  the  same  when  required.  The  bill  was  afterwards  dismissed 
for  want  of  jurisdiction.  Whereupon  Shultz  took  possession  of  the  Caro- 
lina part  of  the  Bridge  ;  and  John  Williamson  filed  a  bill  against  the 
Bank,  Shultz  and  M'Kinnie  claiming  payment  of  the  judgments  assigned 
to  Fitzsimons,  on  the  same  grounds  taken  by  Shultz  in  the  bill  in  the 
Federal  Court.  The  Bank  compromised  with  all  the  parties.  On  the 
30  December,  J.  M'Kinnie,  B.  M'Kinnie  and  their  wives  released  dowers 
and  all  demands.  On  the  8th  May,  1829,  P.  Fitzsimons,  in  considera- 
tion of  $10,000,  released  all  claims  on  the  bridge,  under  the  Bridge  Bill 
judgments;  and  on  the  15th  September,  1829,  Henry  Shultz,  in  conside- 
ration of  the  like  sum,  released  all  his  demands.  The  following  docu- 
mentary evidence  was  produced  by  the  defendants,  viz.:  Paul  Fitzsimons 
to  the  Bank  of  Georgia,  8th  May,  1829 — release  ;  Henry  Shultz  to  the 
Bank  of  Georgia,  15th  September,  1829 — release. 

September,  1829 — Release  of  all  demands  on  the  Bridge. 

J.  Williamson  v.  the  Bank  of  Georgia,  John  M'Kinnie  and  Henry 
Shultz.    Bill  filed  6th  Alay,  1828.    Answer  of  the  Bank,  10th  May,  1828. 

Stoney  &  Magrath,  assignees  of  Snowden,  v.  Andrew  Lowe.  Bill 
filed  25th  May,  1826. 

n^A>7n       *The  ])laintiffs  produced   an   office   copy. — Henry    Shultz   to 
-^  Barna  M'Kinnie.    Conveyance  of  the  Bridge  and  Bridge  Company 
Stock. 

J.  &  B.  M'Kinnie  to  the  Bank  of  the  State  of  Georgia.  10th  June, 
1829.     Mortgage  of  the  Bridge. 

William  Lambkin  to  the  Bank  of  the  State  of  Georgia — 19th  Decem- 
ber, 1821.     Deed  for  the  Bridge. 

The  Bank  of  Georgia  v.  J.  &  B.  M'Kinnie.  Foreclosure  of  Mortgage 
—May,  1821. 

Mr.  Hale  was  examined  for  the  plaintiffs. 

The  Bank  had  large  claims  against  the  M'Kinnies,  and  took  a  mort- 
gage dated  3d  May,  1819.  There  was  a  misnomer — and  another  mort- 
gage was  executed  on  the  10th  June,  1819.  The  mortgage  was  fore- 
closed, and  the  Bank  received  possession  from  the  sheriff  of  Richmond, 
and  kept  the  possession  until  the  suit  in  the  Federal  Court. — After  that 
suit  was  dismissed,  tlie  Court  of  Equity  took  possession  of  the  Carolina 
end,  and  the  Bank  kept  the  Georgia  part.     A  compromise  was  made 


*474]  COLUMBIA,   JANUARY,    1834.  323 

with  Paul  Fitzsimons,  28tli  May,  1829.  The  Bank  claimed  under  their 
title. — They  did  not  admit  the  right  of  Fitzsimons;  but  not  knowin«>' 
what  the  issue  of  a  suit  might  be,  paid  for  a  release  of  all  demands-- 
compromised  with  the  M'Kinnies  first — the  dower  of  their  wives  was 
released,  and  they  gave  up  the  title  deeds.  Another  compromise  was 
made  with  Shultz,  the  15th  September,  1829. 

Shultz  may  have  given  up  some  Bridge  bills,  which  he  said  he  had 
bought,  or  which  were  delivered  to  him  as  agent  for  others.  The 
M'Kinnies  owe  the  Bank  more  than  $90,000  in  executions. 

Cross-examined.  The  profits  of  the  bridge  have  i)een  generally 
received  by  the  Bank.  The  tolls  have  amounted  to  upwards  of  $100,000. 
The  Bridge  has  been  almost  rebuilt.  Last  year,  for  the  first  time,  some- 
thing was  carried  from  the  Bridge  to  the  profit  of  the  Bank  Bridge  bills 
have  sold  at  12^  cents  on  the  dollar.  The  Bank  claimed  in  their  own 
right,  under  their  mortgage  and  the  sale  of  the  sheriff  of  Richmond. 

The  transcript  of  the  proceedings  in  the  Federal  Court,  *\vas  r^  ,*,- 
introduced,  to  show  on  what  grounds  the  Brigde  was  supposed  to  •- 
be  liable  to  the  Bridge  bills,  and  how  the  claim  was  resisted. 

The  defendants  called  James  Marsh.  He  stated  that  Snowden  was  at 
the  sale  in  January,  1825,  and  told  him  he  and  Shultz  had  come  to  an 
understanding,  and  he  expected  to  buy  the  property  himself.  He  did 
not  tell  witness  he  had  made  an  assignment. 

Robert  M'Donald  examined.  Breighthaupt  told  him  they  bought  up 
Bridge  Bills — some  at  37|-,  some  at  50  cents — bought  as  low  as  they 
could,  to  protect  Snowden's  debt. 

Henry  Shultz  was  called  as  witness.  His  testimony  was  objected  to, 
but  received. 

"  It  was  known  at  the  sale  that  Snowden  and  Brooks  had  mortgages, 
and  that  they  were  not  paid.  As  to  Brooks'  mortgage,  property  was 
reserved,  and  if  that  was  insufficient,  I  sold  subject  to  the  mortgage.  As 
to  Snowden,  I  said  he  is  present  and  consents — he  was  five  or  six  feet 
from  me  at  the  time.  Snowden  and  I  had  made  an  arrangement. — He 
was  to  buy  a  square — I  knew  he  had  made  an  assignment,  but  I  did  not 
make  it  known.  He  brought  me  a  letter  from  his  assignee,  saying  he 
was  authorised  to  settle  the  Hamburg  business — I  considered  that  this 
left  him  the  same  power  he  had  before.  That  letter  cannot  be  found.  It 
was  agreed  that  I  should  receive  half  the  purchase  money  in  ray  notes, 
the  rest  in  seven  per  cent,  stock,  which  he  was  to  take  in  payment  of  his 
mortgage,  till  it  was  satisfied.  He  bought  one  lot  and  paid  the  money." 
[Here  were  produced  the  original  papers  of  the  settlement  between  him 
and  the  M'Kinnies,  and  an  entry  respecting  the  bridge  as  part  of  the 
stock  of  the  Bridge  Company,  liable  to  the  payment  of  Bridge  bills.] 

He  admitted  the  advertisement  shown  him,  and  that  he  intended  to 
sell,  whether  Snowden  consented  or  not. — Thinks  Snowden  an  honest 
man. — He  never  asked  Snowden  for  a  release,  thought  it  unnecessary. 

Mr.  S.  said  he  compromised  with  the  Bank  at  $10,000;  he  bound 
himself  not  to  induce  the  Bridge  Bill  holders  to  sue  the  Bank. 

^Defendants  offered  in  evidence  a  receipt  of  C.  Breighthaujit  to  r*  <>-(> 
George  Glenn,  for  $5000,  paid  by  order  of  the  Federal  Court  in  L      ' 
the  case  of  Shultz  and  Breighthaupt  v.  the  Bank  of  Georgia. 

The  Chancellor  by  his  decree,  declared  the  mortgage  of  Brooks  and 


324  SOUTH   CAROLINA   EQUITY   REPORTS.  [*476 

the  judgment  of  Moore  to  be  subsisting  incumbrances  for  the  benefit  of 

Williamson that  the  lands  in  the  hands  of  the  purchasers  were  liable  as 

well  to  the  Bridge  Bill  judgments  as  to  the  mortgage  of  Snowden  ;  and 
that  Williamson  should  account  as  a  mortgagee  in  possession — but  that  a 
portion  of  the  rents  should  be  allowed  to  the  purchasers  for  their  improve- 
ments. 

His  Honor  ordered  the  lands  to  be  sold  on  a  credit — the  case  to  be 
referred  again  to  the  Commissioner  to  ascertain  the  debts  of  Shultz,  and 
to  take  the  accounts — and  ordered  Breighthaupt  to  account  for  the  $5000, 
received  from  the  Federal  Court  in  May,  1825. 

The  plaintiffs  appealed  from  so  much  of  this  decree  as  declares  that 
the  rents  received  by  Williamson,  are  liable  to  be  apportioned  between 
him  and  the  purchasers  who  have  improved.  They  also  appeal  from  the 
order  made  by  his  Honor  in  the  following  particulars. 

1.  The  sale  of  the  premises  on  credit.  They  submit  to  the  Court  that 
they  are  entitled  to  be  paid  in  money,  and  that  if  payment  of  a  debt 
which  is  their  due  can  only  be  obtained  by  a  judicial  sale  on  credit,  the 
decree  or  order  of  the  Court  in  such  cases  is  to  all  intents  and  purposes 
as  much  a  violation  of  the  obligation  of  contracts,  as  an  instalment, 
replevin  or  alleviation  law. 

2.  Tlie  reference  to  the  Commissioner. — They  bring  to  the  view  of  the 
Court  that  the  trustees  advertised  for  creditors  three  months,  and  that 
Mr.  Boyce  has  set  forth  in  his  answer,  the  names  of  the  creditors  who 
have  come  in  to  prove  their  demands.  That  the  Commissioner  afterwards 
by  the  order  of  the  Court  advertised  three  months  for  creditors,  and  has 
made  his  report  of  the  creditors  who  have  proved,  and  of  the  amount  of 
their  demands,  and  the  order  of  reference  is  therefore  superfluous — that  it 

^  tends  to  delay  and  burthen  *with  additional  expense,  the  com- 
-^  plainants  and  all  the  creditors  who  have  come  in,  and  that  it  ought 
not  to  be  made. 

3.  From  the  apportionment  of  the  rents — they  submit  that  Mr. 
Williamson  is  accountable,  as  a  mortgagee  in  possession — that  the 
amount  of  rents  which  came  to  his  hands  is  to  be  deducted  from  his  debt, 
and  that  he  is  not  answerable  for  those  rents  in  any  other  way. 

4.  From  the  order  requiring  Mr.  Breighthaupt  to  account  for  $5000, 
received  from  the  Register  of  the  Federal  Court,  in  May,  1825.  Mr.  B. 
insists  that  this  transaction  has  no  connection  with  the  present  suit — 
that  if  he  is  accountable  to  any  body  it  is  to  the  Bank  of  Georgia,  or  the 
Federal  Court,  and  he  has  accounted  to  both,  and  his  bond  has  been 
given  up — that  he  is  certainly  not  accountable  for  the  same  in  this  suit, 
and  that  the  reference  ordered  is  neither  proper  in  itself  nor  embraced  in 
the  pleadings. 

Defendants  appeal  from  the  decree  of  the  Chancellor  : 

1.  Because  he  erred  in  setting  up  Brook's  mortgage  in  favor  of  the 
complainants  and  Moore's  judgments. 

2.  Because  if  complainants  are  entitled  to  be  subrogated  to  Brooks — 
it  can  only  be  to  those  rights  which  would  have  accrued  if  the  sale  had 
been  good — they  have  no  Equity  to  more  than  a  valid  sale  would  have 
given  them. 

3".  Because  the  Chancellor  erred  in  establishing  the  Bridge  Bill  judg- 
ments on  the  Hamburg  lots. 


*477]  COLUMBIA,   JANUARY,    1834.  325 

4.  Because  the  Chancellor  erred  in  establishing  the  lien  of  the  Brid"-e 
Bill  judgments  against  the  lot  owners. 

5.  Because  he  erred  in  decreeing  that  the  rents,  however  obtained  by 
"Williamson  and  his  representatives,  should  not  be  returned  to  the  lot 
owners. 

6.  Because  he  erred  in  not  decreeing  that  the  lot  owners  should  receive 
rents  and  double  rents,  for  those  lots  from  which  they  had  been  ejected, 

T.  Because  he  erred  in  not  decreeing  that  the  lots  should  be  sold 
according  to  the  dates  of  the  deeds  for  them,  beginning  with  the 
youngest. 

The  case  was  argued  at  May  Term,  1833. 

"^ Blandinfj ,  for  the  defendants.     First — As  to  the  rights  of  the  r:)c|i,Q 
executors  of  Williamson  under  Brook's  mortgage. — He  contended,  L 
1st,    that   they  have  none ;  2d,   that   they  have   none   against    the  lot 
holders. 

The  right  of  substitution  or  subrogation  is  derived  from  the  civil  law, 
1  Poth.  on  Ob.  215.  The  security  may  require  a  creditor  to  assign  all 
securities.  There  are  different  classes  of  eases — one  is  subrogation,  the 
other,  substitution  ;  1  Poth.  on  Ob.  320.  Where  a  security  pays  off  a 
debt  he  must  get  an  assignment,  or  demand  it,  to  entitle  him  to  the  rights 
of  the  creditor:  but  the  Court  will  not  make  the  substitution  in  favor  of 
a  stranger  who  voluntarily  pays  the  debt  and  relieves  the  fund  ;  1  Domat, 
360.  He  is  entitled  to  the  place  of  the  creditor,  1st,  where  there  is  an 
assignment ;  2d,  where  he  pays  under  a  judicial  order  ;  3d,  where  he 
pays  with  the  assent  of  the  debtor.  But  if  any  will  be  prejudiced  there 
will  be  no  substitution.  4  Eq.  Rep.  74;  Smith  u.  Cunningham,  Harp. 
Eq.  Rep.  91.  And  see  8  D.  &  E.  310,  614  ;  1  lb.  21,  as  to  the  right 
at  common  law  to  pay  money  for  another.  Before  the  judgment  of 
Brooks,  Shultz  had  sold  and  put  the  lotholders  in  possession — at  the 
sale  to  foreclose  the  mortgage  he  forbid  it,  and  gave  notice  that  it  was 
void  on  the  ground  that  the  credit  at  the  first  sale  had  not  expired. 
With  a  knowlege  of  these  facts  the  sale  was  made,  the  money  paid,  and 
the  titles  executed.  The  complainants  did  not  then  contend  for  'the 
right  of  subrogation.  There  were  two  sureties  liable  before  the  lot- 
holders — the  unsold  lots,  and  Shultz's  personal  property.  But  Shultz 
having  sold  and  being  out  of  possession  when  the  mortgage  was  fore- 
closed, the  order  for  the  sale  was  void  as  against  Shultz's  purchasers  in 
possession.  Williamson  bought,  therefore,  only  the  unsold  lots,  and  his 
subrogation  can  only  extend  to  them.  Moore's  judgment  must  stand  on 
the  same  footing.     According  to  the  proviso  of  the  Act  of  1791, (a)   (1 

(a)  In  order  that  the  arguments  of  counsel  and  the  decision  of  the  Court  on  the 
construction  of  this  Act  may  be  understood  by  those  unacquainted  with  our  statute 
law,  the  preamble  and  the  first  and  second  sections,  of  the  Act,  together  with  the 
explanatory  Act  of  1797,  are  here  inserted.] 

"  Whereas  mortgagees  are  generally  meant  merely  as  securities  for  debts,  and  no 
actual  estate  is  intended  to  be  conveyed  by  the  mortgagor  to  the  mortgagee  ;  but 
the  mortgaged  estate  is  intended,  and  ought  to  be  considered  only  as  a  pledge  for 
the  payment  of  the  principal  and  interest  due  on  the  debt  meant  to  be  secured. 
And  whereas,  the  present  mode  of  foreclosing  mortgages  of  re.al  estates,  is  tedious 
and  expensive,  and  the  right  of  the  mortgagor  to  his  equity  of  redemption,  is  in  the 
present  mode  of  exercising  that  right,  attended  with  inconvenience  ;  Now  for  the 
easier  and  speedier  advancement  of  justice,  in  obtaining  the  payment  of  debts  se- 


326  SOUTH    CAROLINA    EQUITY    REPORTS.  [*479 

*J."Q1  *Faiist,  63,)  and  the  decision  in  Durand  v.  Isaacs,  4  M'C.  54, 
*  -I  where  the  mortgagor  is  out  of  possession,  and  his  alienee  iti  the 
Court  of  law  cannot  order  a  foreclosure — the  order  was  therefore  void 
as  against  the  alienee.  But  the  ground  of  relief  relied  on  appears  to  be 
mistake.  There  was  no  mistake  of  fact,  and  it  is  not  a  mistake  in  law.  in 
which  both  concur  in  mind.  It  may  be  ignorance  of  the  law  in  one,  but 
this  affords  no  ground  of  relief 

Secondly.  What  effect  is  Snowden's  mortgage  to  have  against  the 
purchasers  of  January,  1825  ?  One  lot  and  two  leases  previously  exe- 
cuted, held  by  Whitner  and  Cobb,  were  excepted  from  the  mortgage. 
But  the  decree  docs  not  exempt  them.  The  decree  of  the  Chancellor 
supposes  that  nothing  was  sold  but  the  equity  of  redemption,  but  it  is 
contended   that   there   was  a  sale  of  the  absolute  fee.     Snowden  was 

cured  by  mortgage,  aud  for  ascertaining  when   the  equity  of  redemption  of  the 
mortgagor  shall  be  barred  : 

Be  it  enacted,  ^-c,  That  on  judgment  being  obtained  in  the  Court  of  Common  Pleas 
on  any  bond,  note  or  debt,  secured  by  mortgage  of  real  estate,  it  shall  and  may  be 
lawful  for  the  judges  of  the  Court  of  Common  Pleas,  in  case  of  any  judgment  having 
been  obtained  subsequent  to  the  property's  being  mortgaged,  and  prior  to  the 
obtaining  judgment  in  the  action  hereby  allowed  to  be  commenced,  to  order  the 
sale  of  the  mortgaged  property  for  the  satisfaction  of  the  moneys  secured  by  the 
said  mortgage,  and  to  give  a  reasonable  extension  of  the  time  when  the  sale  is  to 
take  place,  not  exceeding  the  terra  of  six  months  from  the  judgment;  and  also  to 
give  a  reasonable  credit  on  the  sale  of  the  mortgaged  premises,  not  exceeding  the 
term  of  twelve  months  from  the  sale  ;  and  the  mortgagor  shall  be  for  ever  barred 
and  foreclosed  by  such  sale  from  his  equity  of  redemption,  in  as  complete  a  manner 
as  if  the  same  had  been  foreclosed  in  a  Court  of  Chancery  ;  any  law,  usage  or  custom 
to  the  contrary  notwithstanding:  Provided  always,  That  if  at  any  time  before  such 
sale,  the  mortgagor  shall  tender  to,  or  pay  into  the  hands  of  the  plaintiff,  or  his 
agent  or  attorney,  or  to  the  sheriff,  all  the  principal  money  and  interest  meant  to 
be  secured  by  such  mortgage,  and  also  all  the  costs  of  the  suit,  the  sale  shall  not  take 
place,  but  tlie  mortgagee  shall  enter  satisfaction  on  the  said  mortgage,  and  the 
mortgaged  premises  shall  be  for  ever  exempt  from  the  said  mortgage. 

And  be  it  further  enacted  ly  the  authority  aforesaid.  That  no  mortgagee  shall  be 
entitled  to  maintain  any  possessory  action  for  the  real  estate  mortgaged,  even  after 
the  time  allotted  for  the  payment  of  the  money  secured  by  mortgage  is  elapsed,  but 
the  mortgagor  shall  be  still  deemed  owner  of  the  land,  and  the  mortgagee  as  owner 
of  the  money  lent  or  due,  and  shall  be  entitled  to  recover  satisfaction  for  the  same 
out  of  the  land  in  the  manner  above  set  forth.  Provided  always,  That  nothing 
herein  contained  shall  extend  to  any  suit  or  action  now  pending,  or  when  the  mort- 
gagor shall  be  out  of  possession,  nor  to  contravene  in  any  way,  the  ordinance,enti- 
tled,  "  An  ordinance  to  encourage  subjects  of  foreign  states  to  lend  money  at 
interest  on  real  estates  within  this  State,"  nor  to  deprive  any  person  or  persons  of 
any  right  which  he,  she  or  they  may  have  at  the  time  of  passing  this  Act." 

[  The  explanatory  Act  of  1797,  2  Faust  157,  is  as  follows:] 

"  Whereas  under  the  act,  entitled,  "An  act  for  establishing  an  easier  and  cheaper 
mode  of  recovering  money  by  mortgage  on  real  estates,  and  barring  the  equity  of 
redemption,  and  for  abolishing  the  fictitious  proceedings  in  the  action  of  ejectment," 
doubts  have  arisen,  whether  a  mortgagee,  taking  a  release  of  the  equity  of  redemp- 
tion from  his  mortgagor,  can  be  considered  as  legally  aud  fully  seized  of  the 
ipremises  mortgaged,  inasmuch  as  that  Act  declares  that  the  premises  mortgaged  are 
:  still  to  be  deemed  the  estate  of  the  mortgagor,  and  only  a  pledge  in  the  hands  of  the 
mortgagee,  who  is  not  thereby  vested  with  any  legal  estate,  and  therefore  cannot  be 
benefitted  by  such  a  release  ; 
_  Be  it  therefore  enacted,  ^-c.  That  all  releases  of  the  equity  of  redemption  made 
since  the  passing  of  the  said  Act,  or  hereafter  to  be  made,  shall  have  the  same  force 
and  effect  in  law  as  if  the  said  Act  had  not  been  passed." 


^479] 


COLUMBIA,    JANUARY,    1834.  327 


present,  was  himself  a  purcliaser,  permitted  the  "''sale,  and  the  fee   p.. 
simple  value  was  given,  and  it  was  stated  that  there  was  propertv  '- 
reserved  sufficient  to  pay  the  mortgage,  which  statement  he  did  not  con- 
tradict.    His  presence   and  acquiescence   was  a  waiver  of  his  lien,    1 
Domat,  363  ;  4  Ves.  389  ;  or  otherwise  a  fraud  will  have  been  practised 
on  the  purchasers. 

Suppose,  however,  all  the  mortgages  and  judgments  to  be  set  up,  still 
the  defendants  are  entitled  to  rents  and  profits,  and  double  rents  The 
Chancellor  supposes  the  proviso  to  the  act  of  1791  to  be  a  qualification 
to  the  whole  act,  and  that  therefore,  as  between  the  mortgagee  and 
alienees  of  Shultz,  the  mortgagee  is  the  legal  owner.  In  this,  however, 
it  is  submitted,  he  is  mistaken.  The  first  part  of  the  proviso  declares 
that  it  shall  not  defeat  suits  pending  at  its  passage  ;  the  second  merely 
qualifies  tlie  right  of  foreclosure,  and  restricts  it  to  a  particular  case,  and 
does  not  apply  to  *the  second  clause  of  the  act,  which  denies  the  r^.Q-, 
possessory  action  in  toto.  The  equity  of  redemption,  as  it  is  ^ 
called  in  the  act,  has  been  held  to  be  a  legal  estate,  and  the  subject  of 
levy  and  sale  by  the  sheriff,  as  the  property  of  the  mortgagor;  but  if  the 
Chancellor's  construction  be  correct,  there  is  no  legal  estate. 

If  this  construction  be  correct,  who  is  entitled  to  the  rents  and  profits  ? 
The  rule  is  correctly  laid  down  in  Green  v.  Biddle,  8  Wheat.  81,  that 
the  right  to  the  rents  and  profits  depends  upon  the  fact  who  has  the 
legal  or  equitable  estate.  It  is  admitted  that  in  England,  where  there  is 
an  elder  mortgage  or  judgment,  a  junior  judgment  or  mortgage  creditor 
may  have  an  account  for  the  rents  and  profits  ;  but  it  is  denied  that  a 
naked  judgment  creditor,  or  that  a  naked  mortgage,  has  that  right.  The 
reason  assigned,  is  that  he  has  a  complete  remedy  at  law  ;  and  the 
reason  why  it  is  allowable  in  the  first  case  is,  that  the  kgal  estate  is  in 
the  mortgagee,  and  there  is  therefore  no  remedy  :  3  Atk.  244,  Meade  v. 
Orreey,  Powell  on  Mortgages,  232  :  Duke  of  St.  Alban's  case,  3  Ves 
25.  The  alienee  of  the  mortgagor  is  the  owner  of  the  legal  estate, 
subject  to  the  incumbrance.  An  account  for  rents  and  profits  cannot  be 
taken  until  after  condition  Ijroken.  A  mortgage  in  this  State  is  on  pre- 
cisely the  same  footing.  Snowden  had  no  legal  estate — his  is  merely  an 
equitable  interest,  and  his  presence  and  assent  to  the  sale,  rebuts  his 
equity,  and  precludes  his  right  to  an  account  for  rents. 

He  contended  that  the  lotholders  were  entitled  to  a  decree  for  what- 
ever they  might  have  recovered  from  their  tenants  at  law ;  or  that  the 
injunctions  be  dissolved. 

As  to  the  right  of  the  alienees  to  the  value  of  their  imi)rovemcnts.— 
Under  our  act  the  alienee  is  the  legal  owner  of  the  estate.  No  such 
question  can  ensue  between  mortgagor  and  mortgagee  ;  for  all  the 
mortgagor's  property  is  liable  to  the  payment  of  his  debt,  but  the  alienee 
is  only  subject  to  be  divested  of  the  mortgaged  property.  The  act 
having  refused  jurisdiction  in  such  case  to  the  Courts  of  law,  shows  that 
the  legislature  supposed  that  the  alienee  might  have  equities  which  could 
not  be  set  up  at  law.  The  civil  *law  allows  for  improvements  in  r*^g2 
cases  of  hypothecation.  1  Poth.  335.  In  Green  v.  Biddle,  8  >- 
Wheat.  81,  the  question  is  investigated,  and  the  authority  of  Porter's 
case,  1  Co.  17,  recognized.  Pow.  on  Mortgages,  1040.  There  will  be 
no  difficulty  in  allowing  the  value  of  the  improvements  out  of  the  sale, 


328  SOUTH    CAROLINA    EQUITY    REPORTS.  [*-±82 

should  one  be  ordered.  And  this  can  be  done  by  ascertaining  the 
present  value  of  the  lots  unimproved,  or  the  value  when  sold,  and  sub- 
tract it  from  the  amount  of  the  sales.  When  Williamson  comes  in  for 
subrogation,  the  Court  will  not  allow  it  beyond  the  thing  mortgaged  ; 
and  Snowden's  conduct  should  prevent  him  from  asking  or  receiving  any 
thing  beyond  that;  for  the  terms  of  the  sale  in  his  presence  were  that 
the  purchasers  should  improve,  and  his  consent  entirely  precludes  him 
from  denying  the  purchasers'  rights  to  rents  on  the  improvements. 

As  to  the  Bridge  Bill  judgments.  He  contended  from  the  facts  that 
it  appeared  that  the  Bridge,  having  been  partnership  property,  was 
previously  liable  to  the  payment  of  these  judgments  before  the  private 
property  of  Shultz  should  be  subjected  to  them — the  judgments  being 
existing  liens  on  the  Bridge,  and  the  complainants  having  after  a  course 
of  litigation  compromised  their  claims,  and  released  their  lien  on  the 
Bridge,  operated  as  a  release  and  discharge  of  the  judgments,  so  far  at 
least  as  the  defendants  the  alienees  of  Shultz  are  concerned,  Levey  v. 
Hampton,  1  M'C.  Ch.  116;  1  Eq.  Rep.  321;  1  Poth.  on  Ob.  322,  uo. 
521. 

Feftigru,  for  the  plaintiffs.  1.  The  mortgage  of  Brooks  is  still  a  sub- 
sisting debt.  A  security  which  has  been  cancelled  or  given  up  without 
satisfaction,  may  be  the  subject  of  equitable  jurisdiction.  Burrows  v. 
M'Whann,  1  De  Saus.  409.  Even  at  law  a  satisfaction  has  been 
vacated  in  favor  of  an  assignee,  Wardell  v.  Eden,  1  Johns  Rep.  531,  note, 
S.  C.  2  Johns.  Cas.  121.  If  Thurmond  had  uo  right  to  sell,  he  had  no 
right  to  receive  payment.  The  money  received  from  Williamson  there- 
fore is  as  money  received  to  Williamson's  use  by  Brooks  and  Moore. 
When  the  sale_,was  declared  void,  every  thing  which  depended  on  the 
sale — the  right  of  the  purchaser  to  the  land — the  right  of  the  creditor  to 
the  price  paid — the  right  of  Shultz  to  the  application  of  the  money  to  the 
*48ST  satisfaction  *of  the  judgment  and  mortgage,  are  all  discharged. 
-'  Barton  v.  Petits,  1  Cr.  28S.  If  the  money  was  still  in  Mr. 
Brooks'  hands  there  could  be  no  doubt  that  he  ought  to  pay  it  back  ; 
and  if  Williamson  has  a  right  to  a  return  of  his  money,  the  acknowledg- 
ment of  that  right  is  equivalent  to  an  admission  that  some  one  has  a 
right  to  enforce  the  mortgage.  But  it  is  said  that  the  mortgage,  though 
it  might  avail  the  vendors,  cannot  be  set  up  in  favor  of  Williamson — 
that  the  Leighs  are  satisfied,  and  of  course  the  mortgage  is  extinct. — 
But  Williamson  is  not  satisfied,  and  the  mortgagees  are  bound  to  make 
good  his  loss,  so  far  as  they  can  by  allowing  him  to  stand  in  their  place, 
and  to  operate  his  relief  through  their  equity.  This  is  called  substitution, 
and  the  rules  by  which  it  is  governed  must  be  sought  in  the  English 
Chancery,  not  in  the  civil  law — subrogation  is  not  a  word  known  to  our 
law.  The  limitation  of  this  Equity,  which  the  learned  counsel  would 
deduce  from  the  civil  law,  to  the  exclusion  of  a  person  who  has  volun- 
tarily paid,  is  not  well  founded.  King  v.  Baldwin,  2  Johns.  Ch.  Rep. 
554;  Hayes  v.  Ward,  4  Johns.  C.  C.  123  ;  Green  v.  Hart,  1  Johns. 
Ch.  Rep.  580.  The  idea  that  no  one  can  be  allowed  to  stand  in  the 
place  of  a  creditor  whom  he  has  paid  off,  unless  that  payment  was  made 
under  legal  compulsion,  is  directly  contrary  to  Harris  v.  Lee,  1  P.  Wms. 
483 ;  Marlow  v.    Pitfield,    Ibid.    569 ;    Heushaw  v.    Wilson,     (MS.) 


*483]  COLUMBIA,   JANUARY,    1834.  329 

Charleston,  1828,  in  this  Court.  He  that  voluntarily  pays  the  del)t  of 
another  without  i-equest  cannot  recover  as  for  money  paid  to  the  use  of 
the  other  ;  and  Equity  does  not  aid  a  mere  intermeddler.  But  tiiere  was 
nothing  officious  in  Mr.  Williamson's  conduct.  The  mortgagees  who 
advertised  the  land  and  invited  bidders,  cannot  make  him  suffer  for  their 
blunder,  by  calling  him  a  volunteer. 

2.  The  mortgage  of  Snowden.  It  is  not  pretended  that  this  is  paid, 
but  it  is  said  that  Snowden  was  present  consenting  to  a  sale,  and  there- 
fore against  purchasers  his  mortgage  is  void.  If  the  purchasers  had  been 
ignorant  of  Snowden's  mortgage,  and  he  had  seen  them  buying  without 
giving  notice,  they  would  have  had  a  defence  against  him  on  the  ground 
of  concealment.  But  notice  was  publicly  given  of  his  mortgage,  and  the 
title  deeds  recite  a  story  which  amounts  *to  this  :  *that  Shultz  r-j- ,0  i 
and  the  purchasers,  finding  that  Snowdeu  has  concealed  his  mort-  L 
gage  from  them,  have  thought  proper  to  contract  for  the  purchase  aud 
sale  of  the  mortgaged  premises,  in  order  to  prevent  this  concealed  mort- 
gage from  being  set  up  against  them.  It  is  unnecessary  to  discuss 
seriously  the  question,  whether  a  verbal  assent  would  be  enough  from  a 
mortgagee.  For  it  is  apparent  that  no  consent  was  asked  or  given,  and 
the  sale  was  evidently  a  mere  juggle.  Snowden  was  brought  there  as 
part  of  the  contrivance,  and  the  deeds  of  conveyance  are  nothing  but  a 
trick. 

3.  As  to  the  judgments  against  Henry  Shultz  and  John  M'Kinnie. 
It  is  denied  by  the  defendants  that  the  money  due  on  these  judgments 
can  be  levied  of  Henry  Shultz's  land,  and  the  reason  given  is,  that  they 
are  judgments  for  the  partnership  debt  of  Henry  Shultz  and  John 
M'Kinnie,  trading  under  the  name  of  the  Bridge  Company,  and  that  the 
complainants  in  consideration  of  $10,000,  have  released  all  their  claim  in 
the  Augusta  Bridge.  To  refute  this  objection,  it  is  necessary  to  consider 
how  partnership  property  stands  in  relation  to  creditors,  at  law,  in  equity, 
and  in  bankruptcy.  At  law^  the  partnership  creditor  can  take  either  the 
joint  or  separate  effects  of  either  partner.  The  separate  creditor  can 
take  the  joint  effects  only  suh  modo.    Moody  v.   Payne,  2  Johns.   Ch. 

Rep.  .584  ;  The  King  v.  Sanderson, 50.     Thus  at  law  there  is  no 

difficulty  in  the  joint  creditor  seizing  the  separate  effect ;  the  difficulty 
regards  the  separate  creditor  only.  The  rule  in  equity  has  reference  only 
to  the  rights  of  partners  as  between  one  another.  They  are  joint-tenants 
not  only  of  the  goods  of  which  the  stock  is  first  constituted,  but  of  the 
effects  acquired  in  the  course  of  trade ;  and  nothing  is  to  be  considered 
as  the  absolute  property  of  a  partner,  but  the  residue  or  balance  due  him 
after  an  account  has  been  taken  and  all  the  debts  have  been  paid.  West 
V.  Skip,  1  Yes.  242. 

In  bankruptcy,  the  same  principle  which  governs  in  equity,  viz.,  that 
the  share  of  the  partner  is  only  the  residue  or  balance  of  the  account,  is 
made  the  foundation  for  a  rule  of  distribution  between  creditors.  Part- 
nership creditors  take  the  joint  effects,  and  separate  creditors  take  the 
separate  effects.*  But  let  it  be  observed  that  this  is  strictly  a  r+^gj 
rule  in  bankruptcy,  and  that  where  there  is  no  bankrupt  laws 
there  is  no  room  for  the  introduction  of  it.  There  is  nothing  but  the 
bankrupt  law  which  can  prevent  a  judgment  creditor  of  the  partnership 
from  extending  the  land  of  one  of  the  partners.     Equity  cannot  enjoin 


330  SOUTH    CAROLINA   EQUITY    REPORTS.  [*485 

him.  Moody  v.  Paioe,  2  Johns.  Ch.  Rep.  584.  If  John  M'Kinnie  and 
Henry  Shultz  were  actually  carrying  on  business  as  partners,  and  were 
jointly  possessed  of  the  Augusta  Bridge,  and  Shultz  seized  in  severalty  of 
the  town  of  Hamburg,  there  is  nothing  to  prevent  a  judgment  creditor  of 
the  two,  from  taking  the  land  of  one  of  them  in  execution.  Suppose  the 
case  of  an  English  partnership.  As  long  as  there  is  no  commission  of 
bankruptcy,  there  would  be  no  authority  to  interfere  with  the  creditor  in 
the  choice  of  his  remedies.  But  when  a  commission  issues,  the  joint- 
creditors  acquire  an  interest  in  the  joint  effects,  and  the  separate  credi  ors 
in  the  separate  effects.  Unless  the  Court  has  the  power  of  making  a  dis- 
tribution of  the  separate  effects,  it  cannot  interfere  with  the  equal  right 
of  an  execution  creditor.  If  one  partner  were  to  file  a  bill  against 
another,  the  Court  of  Chancery  would  get  jurisdiction  of  the  partnership 
effects,  and  cause  them  to  be  applied  to  partnership  debts  :  but  Chancery 
jurisdiction  stops  here.  It  cannot  prevent  the  joint  creditor  from  his 
legal  execution  against  the  separate  effects,  because  it  has  no  right  to 
distribute  the  separate  effects  of  the  partner  among  his  separate  creditors. 
The  notion,  therefore,  that  separate  effects  are  to  be  applied  to  the  pay- 
ment of  the  separate  creditors,  to  the  exclusion  of  joint  creditors,  arises 
from  a  misconception  of  the  different  powers  that  belong  to  the  Chancellor 
in  a  Court  of  Chancery,  and  sitting  under  the  authority  of  a  statute  of 
bankruptcy.  In  the  latter  jurisdiction  he  has  the  power  of  doing  com- 
plete justice  ;  he  distributes  both  the  joint  and  separate  estate;  Chancery 
can  distribute  the  joint  estate  only.  The  separate  is  governed  entirely  by 
the  rules  of  the  common  law,  as  long  as  there  is  no  statute  of  bankruptcy. 
The  bankrupt  law  cuts  down  all  creditors  to  a  level,  but  where  there  is 
no  bankrupt  law  there  is  no  authority  to  divest  a  judgment  creditor  of 
the  lien  of  his  judgment. 

*isr"l  *There  is  nothing  then  to  prevent  partnership  creditors  from 
■J  extending  the  land  of  one  of  the  partners.  To  the  other  objec- 
tion, viz.,  that  they  have  released  the  bridge,  the  answer  is,  that  the 
Augusta  Bridge  never  was  liable  to  these  judgments  at  all,  and  the  money 
paid  by  the  Bank  of  Georgia  was  imrely  the  price  of  peace.  An  exami- 
nation of  the  dates  will  show  that  Mr.  Shultz  parted  from  all  his  interest 
in  the  bridge,  long  before  these  judgments  were  obtained.  The  defend- 
ants contend  that  the  sale  made  by  Mr.  Shultz  does  not  prevent  the 
bridge  from  being  assets  to  pay  the  creditors  of  Henry  Shultz  and  John 
M'Kinnie.  But  even  under  the  bankrupt  law  creditors  have  no  lien 
before  a  commission  issues  on  the  partnership  effects.  And  if  one  partner 
bona  fide  disposes  of  his  interest  in  the  partnership  effects  to  the  other, 
they  become  separate  effects ;  if  to  a  third  person,  taking  his  place  in  the 
])artnership,  they  become  the  effects  of  the  new  firm.  This  is  precisely 
the  case  of  Ex  parte  RufBn,  6  Ves.  119.  The  notion  that  the  effects  can 
be  followed  after  a  bona  fide  alienation,  is  without  any  authority,  and  all 
the  litigation  in  the  Courts  of  this  State  and  Georgia,  and  the  United 
States,  was  founded  on  a  total  misconception  of  the  case.  Ex  parte 
Williams,  11  Ves.  3  ;  Ex  parte  Fell,  10  Ves.  347  ;  Ex  parte  Rowland- 
son,  2  Ves.  &  B.  174;  Duff  u.  E.  I.  Co.,  15  Ves.  215. 

4.  The  next  ground  relates  to  the  right  of  Mr.  Williamson  as  a  mort- 
gagee, to  i-ecoup  the  rents  received  from  the  Hamburg  lots,  in  the  amount 
of  his  mortgage. 


*486]  COLUMBIA,   JANUARY,    1834.  331 

"We  contend  tbat  he  is  a  mortgagee  in  possession.  The  notion  tliat  a 
mortgagee  can  in  no  case  enter,  depends  on  the  construction  of  the  Act 
of  1791;  but  it  seems  impossible  to  deny  that  the  proviso  in  that  Act 
saves  and  exempts  all  cases  where  the  mortgagor  is  out  of  possession 
from  its  operation.  It  is  said  that  it  is  unreasonable  that  the  mortgao-ee 
should  be  debarred  from  entering  upon  the  mortgagor  himself,  but 
allowed  to  enter  on  his  assignee.  There  is  nothing  unreasonable  in  it, 
however,  and  it  is  in  strict  accordance  with  the  idea  of  the  Legislature, 
which  was  to  regard  the  equitable  rights  of  the  mortgagor  and 
^mortgagee.  As  between  them,  it  is  the  money  which  is  due,  and  r^.o^ 
the  mortgagee  should  sue  on  his  bond.  But  when  a  stranger  has  L 
got  into  possession  there  is  no  equitable  consideration  at  all  between  him 
and  the  mortgagee.  Lord  Mansfield  would  not  allow  a  tenant  to  set  up 
a  title  in  trustees,  when  the  plaintiff's  action  was  not  meant  to  disturb 
the  possession  of  those  trustees.  Bristow  v.  Pegge,  4  Cow.  309  ;  1  John. 
Rep.  758,  note.  Though  the  Court  of  King's  Bench  has  since  discoun- 
tenanced these  cases,  it  must  be  confessed  that  they  rendered  the  action 
of  ejectment  more  useful,  and  subserved  the  ends  of  justice  better  than  the 
old  rules  which  the  judges  have  re-established.  At  all  events  there  is  no 
reason  why  the  Legislature  should  not  give  the  preference  to  the  more 
liberal  form  of  procedure  ;  and  by  confining  the  mortgagee  to  his  bond 
when  the  question  is  between  him  and  the  mortgagor,  and  leaving  him 
to  his  right  of  entry,  according  to  the  terms  of  the  mortgage  deed,  when 
the  controversy  is  between  him  and  a  stranger ;  they  have  followed  Lord 
Mansfield's  leading,  and  made  the  leading  action  conform  to  the  equita- 
ble right. 

But  that  Mr.  Williamson  was  entitled  to  the  rents,  is  proved  by  this, 
that  the  case  disclosed  by  his  bill  was  sufficient  to  ground  an  order  for  a 
receiver.  If  the  Act  of  1791,  does  not  prevent  him  from  entering,  he  is 
a  mortgagee  in  possession.  If  it  does,  then  he  is  like  a  second  mort- 
gagee, who  is  entitled  to  a  receiver,  simply  because  he  has  no  right  of 
entry  ;  Berney  v.  Shell,  1  Jac.  &  Walk.  647.  "  If  the  person  in  pos- 
session of  real  estate,  which  is  assets,  has,  in  his  answer,  stated  the  cir- 
cumstances to  be  such  that  the  Court  cannot  help  seeing  that  it  must 
become  responsible  to  the  demand,  the  Court  will,  in  the  first  instance, 
put  a  receiver  in  the  estate;"  8  Ves.  71  ;  Angel  v.  Smith,  1  Ves.  338. 
It  is  often  granted  on  the  filing  of  the  bill,  that  is  obtained  at  a  suit  of 
creditors,  1  Cox.  422  ;  Jones  v.  Claughton,  Jacob,  573.  In  favor  of  a 
tenant  in  common  against  his  companion  ;  Street  v.  Anderton,  4  Bro.  C. 
C.  414.  In  the  case  of  partners  ;  Peacock  v.  Peacock,  16  Yes.  49.  And 
against  the  legal  title,  Lloyd  v.  Passingham,  16  Ves.  59.  And  in  the 
ease  of  a  second  mortgagee  ;  Berney  v.  *Shell,  1  Jac.  &  Walk,  p^gg 
647.  When  a  receiver  is  appointed,  if  the  land  is  in  the  posses- 
sion of  tenants,  they  must  pay  their  rents  to  him  upon  being  served  with 
the  order.  When  the  owner  is  in  possession  himself,  the  course  is  to 
apply  to  the  Court,  that  the  owner  may  deliver  possession  to  the  receiver; 
Griffith  V.  Griffith,  2  Ves.  401  ;  Wilkinson  v.  Colley,  5  Bur.  2094. 

Preston,  for  the  defendant,  in  reply.  1.  Can  Brooks'  mortgage  be  set 
up  in  favor  of  the  plaintiffs  ?  In  the  discussion  of  this  question,  all  those 
incidentally  connected  with  it  will  be  considered. 


332  SOUTH    CAROLINA    EQUITY    REPORTS.  [*488 

It  is  not  matter  of  common  right,  that  one,  by  paying  the  debt  of 
another,  can  become  his  creditor.  His  substitution  in  the  place  of  the 
creditor  is  an  exception  to  the  ordinary  rules  of  the  law  ;  and  even  where 
one  is  compelled  to  pay  another's  debt,  he  may  not  be  remitted  to  the 
creditor's  rights.  As  where  the  goods  of  a  stranger  having  been  dis- 
trained on  the  premises  for  rent  in  arrear,  and  he  pays  the  rent  in 
order  to  release  his  goods,  he  may  maintain  an  action  against  the  tenant 
for  money  paid,  which  is  a  mere  personal  demand  ;  but  can  he  be  remitted 
to  the  rights  of  the  creditor — the  right  of  distress  ?  The  broad  propo- 
sition, then,  that  one  may  pay  the  debt  of  another,  and  thus  make  him  a 
debtor,  is  too  monstrous  to  be  sustained.  But  it  is  contended  that  the 
payment  being  made  by  mistake,  entitles  the  plaintiffs  to  the  benefit  of 
the  mortgage.  The  rule  laid  down  in  Sugden,  181,  is  that,  generally, 
mistakes  in  a  deed  or  other  contract  in  writing  will  be  relieved  against  as 
between  the  contracting  parties.  It  does  not  declare  that  the  party 
paying  shall  be  remitted  to  the  rights  of  the  creditor ;  and  none  of  the 
cases  cited  sustain  the  position,  that  the  mere  mistake  of  one  of  the  par- 
ties will  not  confer  that  right — the  mistake  must  be  mutual — unless  there 
be  privity  in  law  or  fact  between  the  parties.  The  case  cited  from  1 
John.  Ch.  607,  was  that  of  a  guardianship  bond  payable  to  the  People, 
when  it  should  have  been  to  the  infant;  and  that  in  2  Atk.  203,  was  the 
*1SQ1  "^^"^^  of  a  mistake  in  drawing  a  deed  contrary  to  the  intention* 
-"  of  the  parties.  These  are  cases  of  mistake  in  form.  Hunt  v. 
Kousemanier,  8  Wheat.  211,  does  not  decide  the  question  of  mistake  in 
law — it  is  expressly  reserved.  The  case  of  Campbell  &  Chambers  v. 
Rochelle,  1  M'C.  Ch.  53,  was  that  of  a  mere  mistake  of  a  ministerial 
officer  charged  with  the  execution  of  process.  There  is  a  difference 
between  ignorance  and  mistake.  The  first  implies  a  want  of  information, 
which  is  accessible  to  the  party,  and  which,  by  industry,  he  might  have 
obtained  ;  and  the  latter  implies  false  information  communicated  to  him. 
but  here  there  is  neither.  Shultz  forbid  the  sale,  and  informed  them  that 
the  title  was  not  good.  But  to  entitle  a  party  to  relief  on  the  grounds 
of  mistake  in  law,  the  mistake  must  be  mutual — this  was  not  the  case  here, 
for  the  sheriff  was  the  agent  of  both  parties,  and  he  was  fully  notified  of 
both  the  law  and  fact ;  and  Shultz  having  forbid  the  sale,  cannot  be 
bound  by  it.  In  Lowndes  v.  Chrisholm,  2  M'C  Ch.  455,  there  was  a 
mutuality  of  mistake,  and  there  was  privity  between  the  parties;  the 
surety  there  was  compelled  to  pay  in  consequence  of  his  obligation.  2 
John.  Ch.  554;  4  John.  Ch.  123  ;  4  John.  Ch.  550,  and  1  Eq.  Rep.  409, 
were  cases  of  payment  by  securities,  and  they  were  held  to  be  entitled  to 
be  remitted  to  the  rights  of  the  creditor ;  and  in  the  case  from  1  John. 
Ch.  580,  the  question  was  whether  the  delivery  of  a  mortgage  was  an 
assignment,  and  it  was  held  to  be  so.  In  all  those  cases  where  the  par- 
ties claimed  and  were  allowed  subrogation,  they  were  under  legal  obliga- 
tions to  pay  the  debts — there  was  no  such  obligation  here.  Williamson 
was  under  no  obligation  to  pay  for  the  purchase,  for  there  was  no 
authority  to  sell.  He  has  paid  the  money  on  this  sale  without  any  legal 
obligation  to  do  so.  He  was  a  mere  volunteer,  acting  with  full  notice, 
wilfully  trusting  to  his  own  judgment,  and  should  abide  by  the  conse- 
quences of  his  own  folly. 

From  the  views  here  presented,  the  plaintiffs  are  not  entitled  to  be 


*489]  COLUMBIA,  JANUARY,    1834.  333 

subrogated  or  substituted  to  a  right  of  action,  or  lien,  as  against  Slmltz  • 
and,  a  fortiori,  tbey  cannot  be  against  the  lotholders.  But  concede 
Shultz's  liability,  and  that  the  liens  may  be  set  up  as  against  him,  the 
question  is  different*  as  to  his  purchasers.  Brooks  received  the 
money  and  made  an  entry  of  satisfaction  on  the  mortgage,  and  L  *"^ 
after  this  some  of  the  tenants  purchased.  If  Brooks  came  by  the  money 
in  mistake,  the  entry  of  satisfaction  was  no  mistake.  It  is  an  abro"-a- 
tion  of  the  security  of  the  lien,  and  the  Court  will  not  set  it  up  as  against 
bona  fide  purchasers.  But  should  the  Court  remit  the  plaintiff  to  Brook's 
rights,  they  will  be  made  to  account  for  all  losses  sustained  by  William- 
son's interference.  If  his  conduct  has  operated  to  their  prejudice  and 
reduced  their  rents,  or  if  he  has  been  the  means  of  their  losing  their 
rents,  he  should  redress  them  ;  for  the  Court  in  setting  up  an  equity  will 
take  care  that  equity  shall  be  done  by  the  party  in  whose  favor  it  is 
set  up. 

At  sheriff's  sales  there  is  no  warranty.  A  purchaser  is  not  bound  to 
look  into  the  regularity  of  the  sale  ;  but  he  must,  at  his  peril,  see  that  the 
sheriff  has  authority  to  sell,  and  if  he  fail  to  do  so,  and  there  is  a  want  of 
such  authority  he  must  abide  the  consequences.  Where  a  purchaser  at 
sherifiTs  sale  fails  to  recover,  for  want  of  authority  in  the  sheriff  to  sell, 
has. he  the  right  to  set  up  the  judgment  or  execution  ?  There  are  many 
such  cases,  but  none  can  be  found  where  the  purchaser  has  been  remitted 
to  the  rights  of  the  creditor — at  most  he  can  only  maintain  an  action  to 
recover  it  back.  Is  not  a  sale  under  a  mortgage  an  order  of  foreclosure, 
subject  to  the  same  rules  ? 

It  is  admitted,  that  according  to  the  authority  of  Durand  v.  Isaacs,  4 
M'C.  Rep.  54,  the  Court  of  law  had  no  right  to  foreclose,  except  as 
regards  the  lots  of  which  Shultz  was  in  possession.  The  mistake  was  in  the 
order,  and  the  plaintiffs  have  no  right  to  go  beyond  the  sale,  and  to  obtain 
relief  on  the  ground  that  the  Court  of  law  exceeded  its  jurisdiction,  for 
this  would  be  to  affect  the  rights  of  third  persons,  which  the  Court  will 
take  care  to  guard  against  in  making  substitution.  If,  then,  the  sale 
should  be  made  good,  it  can  only  extend  to  the  unsold  lots,  and  the  mis- 
take can  only  be  corrected  that  far  ;  for  otherwise,  Williamson,  by  making 
a  purchase  at  a  sale  which  is  void,  acquires  more  rights  than  if  the  sale 
had  been  good 

*But  it  is  contended  for  the  complainant  that  Williamson  was  .  ^tni 
the  assignee  of  the  mortgagee  in  possession.  Equity  will  regard  ^ 
as  done  what  ought  to  have  been  done— but  can  Equity  make  that 
assignment  in  such  way  as  to  operate  nunc  2:)ro  tunc?  If  however  that 
is  done  the  complainants  are  not  entitled  to  rents  and  profits.  In  England 
lands  are  not  liable  to  sale  on  execution,  they  may  be  extended,  and  there 
all  mortgagees  and  judgment  creditors  are  entitled  to  the  rents  and 
profits.  And  a  receiver  has  been  appointed  when  by  descent  the  title 
was  cast  on  an  infant,  1  Cox.  Ch.  433.  But  the  reason  being  different 
here  a  different  doctrine  must  prevail.  By  the  decision  in  Durand  r. 
Isaacs,  the  words  of  the  proviso  in  the  Act  of  1791  must  be  applied  to 
the  first  clause,  and  when  so  applied  the  same  meaning  must  be  preserved 
in  its  modification  of  all  the  other  clauses.  The  words  "  out  of  i)Osses- 
sion"  mean  a  want  of  actual  possession.  The  intention  of  the  Act  was  to 
declare  the  rights  of  the  parties — that  the  mortgagor  was  still  the  owner 


334  SOUTH    CAROLINA   EQUITY    REPORTS.  [*491 

of  the  land,  and  the  mortgagee  of  the  money  lent ;  and  this  is  still  more 
manifest  by  the  explanatory  of  1797,  (2  Faust  157) 

As  regards  the  appointment  of  a  receiver.  This  is  in  a  great  measure 
discretionary  with  tlie  Court,  but  the  Court  will  be  cautious  of  interfering 
with  the  rights  of  prior  claimants,  Jeremy.  Eq.  248.  The  purchasers 
are  in  possession  claiming  the  legal  title,  and  under  the  circumstances  the 
Court  would  not  undertake  to  decide  the  legal  right,  and  appoint  a 
receiver. 

As  to  Snowden's  mortgage.  It  is  conceded  that  most  of  the  cases  of 
standing  by  and  permitting  another  to  purchase,  are  cases  of  concealment. 
But  the  principle  is  applicable  to  this  case. — The  fraud  practised  on  the 
purchaser  is  the  ground  of  the  rule  ;  Sugd,  522  ;  Tarrant  v.  Terry,  1 
Bay,  239.  If  one  stand  by  and  permit  another  to  buy,  or  build  upon 
his  land,  he  will  be  concluded  from  asserting  his  right;  and  if  he  en- 
courage the  purchaser,  his  expressions  are  stronger  than  his  silence. 
Snowden  was  present,  an  arrangement  to  satisfy  his  mortgage  was 
announced  in  his  presence,  the  purchasers  were  required  to  build,  and 
they  paid  the  fee  simple  value — under  these  circumstances  his  lien  should 
*iqoi  ^^  regarded  *as  lost  or  waived,  or  otherwise  the  Court  will  assist 
''-^  in  practising  a  fraud  on  the  purchasers. 

As  to  the  Bridge  Bill  judgments.  Let  it  be  conceded  that  at  law.  the 
plaintiffs  would  have  the  right  to  sell  any  of  the  property  of  either  of  the 
parties.  Still  it  is  insisted  that  the  fund  primarily  liable  to  the  payment 
of  the  partnership  debts  has  been  released.  One  of  the  considerations 
set  out  in  the  deed  is  the  liability  which  B.  M'Kinnie  was  under  to  pay 
the  debts  of  the  concern  :  this  was  a  pledge  of  the  property  for  the  pay- 
ment of  the  partnership  debts.  The  bridge  was  ordered  to  be  sold  for 
foreclosure  by  the  decree  of  the  Georgia  Court — no  sale  was  made — and 
the  subsequent  settlement  is  a  satisfaction  of  the  mortgage.  But  the 
complainants  paid  only  fifty  cents  on  the  dollar  for  their  incumbrances ; 
if  they  are  set  up,  will  they  be  allowed  beyond  the  amount  paid  for  them  ? 

As  regards  the  improvements  they  should  be  allowed  for — when 
ascertained,  they  can  be  deducted  from  the  amount  of  rents  and  profits. 
The  alienees  having  the  legal  title  could  have  removed  their  buildings 
before  foreclosure,  and  no  action  could  have  been  maintained  against 
them,  but  if  they  have  permitted  them  to  remain,  those  benefitted  should 
account  for  their  value. 

Pettigru,  in  reply.  Relief  will  be  extended  to  those  who  pay  money 
voluntarily,  1st,  when  one  lends  money  to  a  wife  to  pay  for  necessaries, 
he  is  put  in  the  place  of  the  seller ;  1  P.  W.  483  ;  2d,  in  the  case  of 
infants,  1  P.  W.  569  ;  3d,  where  monef  is  lent  to  a  trustee  who  expends 
it  for  the  benefit  of  the  trust  estate. 

Brooks  put  up  for  sale  all  that  was  mortgaged  to  him,  and  Williamson 
became  the  purchaser  of  that  interest,  whatever  it  was.  He  is  therefore 
the  assignee  of  Brooks'  interest,  and  is  not  to  be  remitted  merely  to  the 
unsold  lots — the  mere  purlieus  of  Hamburg. 

Cliancery  will  grant  an  injunction  to  prevent  judgment  creditors  from 
selling  mortgaged  lands,  2  Johns.  Ch.  125.  The  Court  will  interfere 
whenever  it  is  clear  that  the  estate  is  liable  as  assets  for  the  payment  of 
debts,  16  Yes.  59.     See  also,  3  Atk.  530,  .    As  regards  Snowden's 


*-192]  COLUMBIA,    JANUARY,    1834.  335 

consent  to  the  *sale  it  is  witluu  the  Statute  of  Frauds.     See  Pasley 

V.  Freeman,  3  T.  R.  51.  [*-i93 

Blanding.  There  is  no  case  in  which  a  receiver  has  been  appointed 
where  there  is  a  mere  lien  which  can  be  satisfied  by  a  sale  of  the  estate. 

The  cause  was  postponed  for  consideration,  and  at  this  Term  the 
Court  delivered  the  following  decree. 

Johnson,  J.  Both  parties  have  appealed  from  the  decree  of  the  Cir- 
cuit Court,  and  the  grounds  stated  open  for  consideration  most  of  the 
leading  points  in  the  cause.  I  propose  to  consider  them  in  the  order  in 
which  they  are  put  down  in  the  brief,  beginning  with  those  of  the  defend- 
ants, as  going  more  directly  to  the  merits. 

The  first  and  second  may  be  resolved  into  the  general  question,  whether 
the  mortgage  to  Brooks  and  Moore's  judgment  can  be  set  up  as  a  lien  on 
the  Leigh  tract  of  land  generally,  and  more  particularly,  whether  the 
mortgage  can  be  set  up  in  opposition  to  the  rights  of  those  who  pur- 
chased lots  from  Shultz  before  the  mortgage  was  ordered  to  be  foreclosed. 
■1.  The  very  able  argument  of  the  Chancellor  in  support  of  his  views  of 
this  question,  vindicates,  very  satisfactorily,  his  order  setting  up  those 
liens.  I  will  notice,  however,  some  of  the  arguments  which  have  been 
urged  by  the  counsel  in  support  of  this  ground  of  the  motion  with  great 
apparent  confidence.  The  most  prominent  are,  first,  that  Williamson 
having  purchased  with  notice  that  the  sale  was  premature  and  irregular, 
is  not  entitled  to  relief:  Secondly,  That  all  that  Williamson  can  claim  is 
to  be  put  in  the  same  situation  that  he  would  have  been  if  the  sale  had 
been  regular  and  valid,  and  that  according  to  this  rule,  he  would  only  be 
entitled  to  have  the  mortgage  set  up  against  the  unsold  lands,  because 
the  law  Court  had  no  authority  to  order  the  foreclosure  as  to  the  lots 
which  had  been  sold. 

1.  The  general  rule  very  clearly  is,  that  there  is  no  implied  warranty  in 
sales  made  by  a  sheriff  or  other  ministerial  officer  in  his  official  capacity, 
but  that  applies  exclusively  to  the  quality  and  property  of  the  thing  sold. 
Thus  *in  a  sale  made  by  a  sheriff  of  goods  taken  in  execution,  r^ iqi 
.there  is  no  implied  warranty,  on  the  part  of  the  sheriff,  that  the  ■- 
goods  are  intrinsically  worth  anything,  or  that  the  defendant  has  any 
property  in  them.  He  only  undertakes  to  sell  the  interest  which  the 
defendant  may  happen  to  have  in  the  goods,  in  the  condition  in  which 
they  are.  But  the  principle  does  not  apply  to  cases  where  the  sheriff  or 
other  officer  assumes  an  authority  where  none  is  given  by  law.  It  will 
hardly  be  questioned,  that  if  a  sheriff  induce  persons  to  purchase  at  his 
sales,  by  pretending  that  he  has  the  authority  of  law  for  the  sale,  when 
in  truth  he  has  not,  the  purchaser  must  be  without  remedy.  It  is  a  fraud 
for  which  he  would  be  responsible,  and  the  principle  ecjually  applies  when 
he  acts  upon  a  void  authority.  In  any  case  the  sheriff  is  bound  to  show 
that  he  is  legally  authorized  to  do  that  which  he  assumes  to  do  virtule 
officii.  The  case  in  hand  does  not  entirely  depend  even  on  that  rule. 
In  his  deed  to  Williamson,  the  sheriff  recites  the  order  of  foreclosure  of 
Spring  Term,  1827,  the  sale  on  the  first  Monday  in  June,  thereafter,  and 
the  failure  of  the  purchaser  to  pay  the  purchase-money  according  to  the 
terms  of  the  sale,  the  advertisement  of  the  subsequent  sale,  and  the  sale 


336  SOUTH    CAROLINA   EQUITY    REPORTS.  [*494 

to  Williamson — and  in  pursuance  thereof  he  undertakes  to  convey.  Here 
there  is  an  express  declaration  on  the  part  of  the  sheriff  of  his  authority 
to  sell,  and  although  it  is  stated  by  way  of  recital,  he  is  as  effectually 
estopped  as  if  it  had  been  in  the  form  of  an  express  covenant.  Com. 
Dig.  Estopel,  B.  5.  Buller  N.  P.  298.  In  effect  it  is  a  covenant  on  the 
part  of  the  sheriff  that  he  has  authority  to  sell,  and  the  same  thing  is  im- 
plied in  every  sale  he  makes.  Conceding,  then,  Williamson  had  notice  of 
the  circumstances  from  which  the  want  of  authority  to  sell  has  been 
deduced  in  the  case  of  Williamson  v.  Farrow,  here  is  the  guaranty  of  the 
sheriff  against  the  consequences.  One  of  two  persons  who  are  equally 
confident  of  their  title  to  the  same  article  of  property,  undertakes  to  sell 
it  to  a  third  who  knows  all  the  circumstances,  and  covenants  to  warrant 
the  title — did  any  one  ever  yet  suppose  that  he  would  not  be  bound  by 
that  warranty.  In  principle  this  is  that  case.  The  sheriff,  supported  by 
j^  -,  *Brooks  the  mortgagee,  undertook  to  sell  the  land  ;  Shultz  denied 
J  their  authority,  on  the  ground  that  the  time  for  the  payment  of 
the  money  had  not  passed.  Was  Williamson  obliged  to  sit  in  judgment 
on  this  controversy,  and  decide  at  his  peril  ?  Might  not  the  sheriff  cove- 
nant for  his  authority  to  sell  ?    And  is  he  not  bound  ? 

2.  The  authority  of  the  Law  Court  to  order  the  foreclosure  of  mort- 
gages on  lands  is  derived  from  the  Act  of  1791,  and  in  that  Act  there 
is  an  express  proviso,  that  nothing  therein  contained  shall  extend  to  any 
suit  or  action  then  pending,  "or  where  the  mortgagor  shall  be  out  of  pos- 
session." But  this  I  regard  as  wholly  unimportant  to  this  branch  of  the 
case.  The  complainants  do  not  ask  to  have  Williamson's  purchase  carried 
into  effect.  That  was  adjudged  against  him  in  Williamson  i'.  Farrow — 
he  took  nothing  by  the  purchase.  But  upon  the  principle  before  laid 
down,  they  have  the  right  to  ask  to  be  reimbursed  the  sum  which  William- 
son paid.  It  is  money  paid  on  a  consideration  which  has  wholly  failed,  and 
upon  the  plainest  principles  of  common  sense  and  common  honesty,  they 
are  entitled  to  recover  it  back.  Primarily  the  sheriff  is  liable,  because  it 
was  he  who  received  the  money  and  guaranteed  his  authority  to  sell. 
Upon  the  same  principle  Brooks  too  is  liable,  for  the  sheriff  acted  under 
his  authority  and  for  his  benefit,  and  paid  the  amount  of  the  mortgage  to 
him.  It  seems  also  that  Brooks  received  it  in  the  capacity  of  Commis- 
sioner in  Equity,  and  in  his  answer  he  states  that  he  had  paid  it  over  to 
the  persons  entitled,  and  against  them  he  has  an  unquestionable  remedy. 
The  same  thing  may  be  said  of  the  amount  paid  on  Moore's  judgment, 
and  the  object  of  this  bill  is  not  as  the  argument  supposes — a  claim  on  the 
part  of  the  complainants  to  be  subrogated  to  the  rights  of  the  mortgagee 
and  the  judgment  creditor,  but  that  the  multiplicity  and  circuity  of  action 
which  would  be  necessary  in  a  Court  of  Law  may  be  avoided  and  justice 
done  to  all  the  parties  at  once,  that  the  lands  may  now  be  sold  to  satisfy 
the  mortgage  and  judgment,  in  relief  of  the  mortgage  and  judgment 
creditor — and  it  may  be  asked  what  wrong  is  done  to  the  defendants  by 
*49ri  ^^^^  Qiode  of  *proceeding.  In  the  end  the  money  due  on  the 
-^  mortgage  and  judgment  must  be  paid,  and  that  is  all  that  is 
claimed  now. 

Tlie  third  and  fourth  grounds  of  the  defendants'  motion  call  in  ques- 
tion the  legality  of  the  order  of  the  Circuit  Court  setting  up  the  judg- 


*496]  COLUMBIA,   JANUARY,    1S34.  337 

merits  on  the  Bridge  Bank  Bills  assig^ned  to  the  plaintiffs,  partifiilarlv  in 
opposition  to  the  rights  of  the  lot-owners  who  purchased  from  Shuhz. 

The  argument  in  support  of  these  grounds  assumes  that  these  judg- 
ments were  a  lien  on  the  Bridge  at  the  time  the  defendants  (the  lot 
owners)  purchased  from  Shultz,  and  that  the  release  of  it  by  Paul  Fitz- 
simons,  operated  as  a  fraud  on  them,  as  it  operated  to  exempt  a  fund  pri- 
marily liable,  and  threw  the  burthen  on  the  individual  property  of  Sliultz. 

If  this  assumption  was  supported  by  the  facts,  I  should  be  inclined  to 
think  with  the  defendants'  counsel,  that  the  judgment  creditors  ought  to 
be  left  to  their  remedy  against  that  fund,  or  having  released  it,  they  are 
without  remedy.  The  judgments  were  for  parnership  debts.  The  Bridge 
according  to  this  allegation  was  partnership  property  and  liable  to  the 
judgments.  The  defendants,  the  purchasers  of  lots  from  Shultz,  claim 
that  the  judgment  creditors  may  exhaust  that  remedy  before  they  resort 
to  the  property  purchased  by  them,  I  need  not  resort  to  authority  to 
show  that  a  judgment  creditor  will  be  compelled  to  resort  to  the  property 
of  the  debtor  to  satisfy  his  judgment  in  relief  of  property  purchased  from 
him  by  a  stranger ;  and  this  is,  as  I  understand  it,  the  case  made  l)y  the 
facts  assumed.     They  are  not  however  supported  by  the  proof. 

The  property  in  the  Bridge  was  in  John  and  Barna  M'Kinnie,  who 
constituted  at  that  time  the  Bridge  Company.  They  mortgaged  the 
Bridge  to  the  Bank  of  Georgia,  on  the  10th  June,  1819,  to  secure  the 
payment  of  $98,000;  and  on  a  bill  filed  in  the  Federal  Court  at  Savannah 
to  which  the  judgment  creditors  and  Shultz,  the  Bank  of  Georgia  and 
John  and  Barna  M'Kinnie,  were  parties — an  order  was  oljtained  by  con- 
sent that  the  Bridge  should  be  sold  and  the  money  brought  into  Court. 
On  the  28th  Nov.  1822,  it  was  accordingly  sold,  and  purchased  by  the 
Bank  at  $70,000,  being  $28,000  less  *than  the  amount  of  their  r-^..^^^ 
mortgage,  and  the  proceeds  were,  by  the  order  of  the  Court,  ^ 
deposited  in  the  Bank.  That  bill  was  afterwards  dismissed  for  want  of 
jurisdiction,  but  if  the  Bridge  Company  had  at  that  time  any  property  in 
the  Bridge,  it  was  divested  by  the  sale.  If  we  are  referred  to  the  fund 
in  Bank  arising  from  the  sales  of  the  Bridge,  that  is  swallowed  up  by  the 
prior  lien  of  the  mortgage. 

An  entry  made  in  the  books  of  the  Bridge  Bank,  pledging  the  Bridge 
amongst  other  things  for  the  redemption  of  the  bills  issued  by  the  Bank 
and  on  which  these  judgments  are  founded,  is  set  np  by  the  defendants 
as  a  lien  on  the  Bridge,  as  paramount  to  the  mortgage,  being  anterior  in 
point  of  time.  This  is  well  answered  in  the  Circuit  Court  decree.  There 
was  no  evidence  that  the  Bank  of  Georgia  had  any  notice  of  this  entry. 
In  itself  there  was  nothing  to  divest  the  Bridge  Company  of  the  property 
in  the  Bridge.  Conceding  that  it  possessed  all  the  requisites  of  a  legal 
and  binding  contract,  from  the  nature  of  it,  the  right  and  power  of  the 
disposition  of  the  Bridge  must  have  been  reserved  to  the  Bridge  Com- 
pany; for  that  was  the  only  mode  in  which  they  could  make  it  avaihable 
in  the  payment  of  the  bills,  and  they  alone  are  responsible  for  the  dis- 
position they  made  of  the  proceeds.  The  sums  paid  to  Shultz  and 
Fitzsimons  cannot  be  otherwise  regarded  than  as  the  price  of  peace. 
The  sum  received  by  Fitzsimons  wa^  properly  ordered  to  be  credited  on 
the  judgments.  It  was  paid  on  that  account,  and  although  by  a  stranger, 
supposing  it  even  voluntary,  it  is  j;ro  tanto  a  satisfaction. 
Vol  I.— 22 


338  SOUTH   CAROLINA   EQUITY   REPORTS.  [*497 

The  fifth  and  sixth  grounds  of  the  defendants'  appeal,  object  to  the 
amount  and  disposition  of  the  rents  made  in  the  Circuit  Court  decree, 
and  may  be  conveniently  considered  in  the  same  general  view. 

At  the  common  law  there  is  no  question  that  as  mortgagee,  Brooks 
was  entitled  to  the  possession  of  the  laud  after  the  condition  of  the  mort- 
gage was  broken,  or  that  he  might  have  maintained  a  possessory  action 
against  the  mortgagor  or  any  one  else  in  possession,  and  was  entitled  to 
enter  upon  a  vacant  possession  ;  and  if  a  mortgagee  give  notice  to  the 
tenant  in  possession,  that  the  money  secured  by  the  mortgage  has 
^  -,  *not  been  paid,  the  tenant  is  bound  to  account  with  him  not  only 
-J  for  the  accruing  rents  but  for  the  rent  in  arrear ;  and  the  mort- 
gagee may  resort  to  the  summary  remedy  by  distress,  and  in  Moss  v. 
Gallimore,  Doug.  270,  Lord  Mansfield  says,  that  he  considers  "this 
remedy  a  very  proper  additional  advantiige  to  mortgagees,  to  prevent 
collusion  between  the  tenant  and  the  mortgagor."  Thus  stood  the  com- 
mon law,  and  according  to  this  rule  there  is  no  question  about  Brooks' 
right  to  receive  the  rents  after  notice  to  the  tenants  that  the  money  due 
on  the  mortgage  was  unpaid. 

We  are  next  to  inquire  whether  the  Act  of  Assembly  of  1191,  has 
made  any  change  in  the  common  law  in  this  respect.  That  act  seems 
to  have  been  intended  principally  to  give  jurisdiction  to  the  Law  Courts, 
to  enable  them  in  a  particular  case,  (the  case  where  a  judgment  had  been 
obtained  against  the  mortgagor  by  a  third  ])erson,)  to  foreclose  the  mort- 
gage and  bar  the  equity  of  redemption.  I3ut  it  goes  on  to  declare,  that 
"the  mortgagee  shall  not  be  entitled  to  maintain  any  possessory  action 
for  the  real  estate  mortgaged,  even  after  the  time  allowed  for  the  payment 
of  the  money  secured  by  the  mortgage  is  elapsed,  but  the  mortgagor 
shall  be  deemed  the  owner  of  the  land,  and  the  mortgagee  of  the  money 
lent  or  due;"  and  then  follows  a  proviao,  that  nothing  therein  "con- 
tained shall  extend  to  any  suit  or  action  then  pending,  or  when  the 
mortgagor  shall  be  out  of  possession."  A  doubt  has  been  thrown  out, 
whether  this  proviso  extends  to  the  declaration,  that  "  the  mortgagor 
shall  be  deemed  the  owner  of  the  land,"  and  hence  it  was  intended  to  be 
concluded,  that  the  mortgagee  could  in  no  instance  and  under  no  circum- 
stances maintain  a  possessory  action,  and  could  not  therefore  be  entitled 
to  rents  and  profits.  The  proviso  follows  the  declaration  in  the  same 
clause,  and  I  cannot  conceive  of  language  more  appropriate  than  that 
used  to  express  the  idea  that  not  only  that  declaration,  but  the  whole  act 
should  be  inoperative  when  the  morgagor  was  out  of  possession.  And  it 
has  received  that  construction  in  the  case  of  Durand  v.  Isaacs,  4  M'C. 
54,  in  which  it  was  ruled  that  the  Law  Court  had  no  jurisdiction  in  cases 
of  mortgages  when  the  mortgagor  was  out  of  possession  ;  and  Judge 
*4991  ■^°^^'  "^  delivering  the  judgment  of  the  Court  in  that  *case,  has 
given  the  most  satisfactory  reasons  why  the  exception  ought  to 
have  been  made.  I  take  it  therefore  as  clear,  that  Shultz  the  mortgagor 
being  out  of  possession,  the  rights  and  powers  of  Brooks  as  mortgagee, 
in  respect  to  the  purchasers  of  lots  in  possession  under  Shultz,  must  be 
determined  according  to  the  rule  of  the  common  law,  and  according  to 
that  he  had  a  right  to  receive  and  retain  the  rents,  having  given  notice 
of  the  mortgage  to  the  tenants  in  possession. 


*499]  COLUMBIA,   JANUARY,   1834.  339 

The  question  then  arises  whether  Williamson  and  the  plaintiffs  his 
representatives,  are  entitled  to  the  same  rights  and  immunities. 

According  to  the  preceding  view,  as  between  Brooks  the  mortgao-ee 
and  the  assignees  of  Shnltz,  tenants  in  possession,  the  legal  estate  was  in 
Brooks,  subject  to  the  equity  of  redemption,  (a)  He  had  therefore  a  right 
to  convey  the  land  itself,  subject  to  this  equity,  or  he  might  have  assigned 
the  mortgage,  with  or  without  having  entered  upon  and  taken  possession 
of  the  premises. — Matthews  vs.  Wallwyn,  4  Ves.  118  ;  Clute  vs.  Robin- 
son, 2  John.  R,ep.  612.  The  sheriff,  under  the  authority  and  by  the  di- 
rection of  Brooks,  did  make  a  deed,  by  which  he  undertook  to  convey  the 
fee  in  these  lands  to  Williamson  unconditionally ;  and  although  that  was 
a  greater  interest  than  Brooks  had  in  the  land,  the  minor  interest,  whether 
of  the  legal  estate  subject  to  the  equity  of  redemption,  or  the  right  to 
assign  the  mortgage  whereby  the  legal  estate  would  pass,  was  necessa- 
rily covered  by  it.  In  this  view  the  sheriff  must  be  regarded  as  the  pri- 
vate ageut  of  Brooks,  and  not  as  acting  in  his  official  capacity  ;  and  if  it 
be  objected  that  his  authority  from  Brooks  was  by  parol,  and  void  under 
the  statute  of  frauds,  it  is  an  answer,  that  the  facts  are  admitted  by 
Brooks  in  his  answer  to  this  bill — a  confirmation  of  the  act.  Williamson  was 
therefore  entitled  to  all  the  rights  of  Brooks,  and  necessarily  to  the  rents 

The  seventh  and  last  ground  of  appeal  on  the  part  of  *the  de-  r^rr^r. 
fendants,  complains  of  error  in  the  decree  of  the  Circuit  Court,  ^ 
in  not  directing  the  sale  of  the  lots  in  the  order  in  which  they  were  con- 
veyed by  Shultz,  beginning  with  the  last,  and  proceeding  according  to 
the  order  of  the  dates,  to  the  first. 

The  counsel  for  the  complainants  have  consented  to  a  modification  of 
the  decree,  according  to  this  suggestion.  I  do  not  regard  it  however  as 
depending  entirely  on  the  concession  of  counsel.  As  between  the  com- 
plainants and  defendants  the  whole  is  equally  liable,  but  amongst  the 
defendants  themselves,  there  is  an  equity  which  ought  to  be  kept  in  view. 
Knowing  of  the  mortgage  and  judgments,  the  first  purchasers  must  neces- 
sarily have  looked  to  the  residue  of  the  land  as  a  security  for  the  satisfac- 
tion of  them.  Every  subsequent  purchase  diminished  the  amount  of  this 
security,  and  operated  as  a  fraud  upon  the  first  purchasers. 

I  shall  now  proceed  to  notice  the  grounds  of  appeal  taken  on  the  part 
of  the  complainants. 

1.  The  order  that  the  land  shall  be  sold  on  a  credit  of  twelve  months, 
as  to  three-fourths  of  the  purchase  money,  is  complained  of  as  a  violation 
of  the  obligation  of  contracts. 

This  order  is  in  conformity  with  the  practice  of  the  Court  of  Chancery, 
both  in  this  country  and  England.  In  the  Act  of  1791,  before  referred 
to,  authority  is  expressly  given  to  the  Law  Courts  to  give  time  for  the 
payment  of  the  money  due  on  the  mortgage,  and  a  credit  on  the  sales.  It 
is  founded,  as  I  understand  it,  upon  the  principle  of  Equity,  that  the 
mortgagor  has  a  right  to  redeem,  at  any  time,  until  he  is  bound  by  the 
presumption  arising  from  lapse  of  time,  according  to  the  construction 


(a)  But  see  the  opinion  of  the  Court  delivered  by  Johnson,  J.,  in  Smith  and  Cuttino 
V.  Osborne  and  others,  ante,  342,  where  the  reason  given  why  the  Statute  of  Limi- 
tations should  not  bar  a  mortgage  lien,  is  that  the  le^al  estate  is  not  in  the  mortgagee, 
even  where  (as  in  that  case)  the  mortgagor  was  "  out  of  possession." 


340  SOUTH   CAROLINA    EQUITY    REPORTS.  [*500 

of  tlie  contract,  he  has  the  right  to  redeem  at  an  indefinite  period,  and  it 
follows  necessarily,  that  a  sale  on  a  limited  credit  is  no  violation  of  the 
obligation  of  that  contract.  I  think  also  that  it  might  be  justified  on 
the  footing  of  a  lex  fori,  for  its  use  is  universal,  and  co-existent  with  the 
Courts  of  Chancery  over  mortgages. 

2.  Notice  to  the  creditors  of  Shultz  to  come  in  and  prove  their  de- 
mands has  been  already  twice  given — once  according  to  the  answer  of 
^_„,-,  Boyce,  by  the  Commissioners  appointed*  under  the  order  of  the 

-'  Court,  and  once  under  the  order  of  the  Court,  and  I  have  heard 
no  suggestion  that  there  are  any  yet  to  come  in  ;  and  I  presume  that  the 
order  for  the  publication  of  further  notice,  and  allowing  time  for  them 
to  come  in,  was  made  through  abundant  caution,  and  without  the 
knowledge  of  the  fact  that  notice  had  already  been  given.  If  there  are 
other  creditors,  it  is  their  own  fault  that  they  have  not  come  in  and 
proved  their  debts.  They  are  not  therefore  entitled  to  the  indulgence 
of  the  Court,  nor  ought  the  complainants  to  be  longer  delayed  on  that 
account — in  this  respect  therefore  the  decree  must  be  reformed. 

3.  The  decree  of  the  Circuit  Court  directs  that  the  rents  of  the  lots 
which  have  been  sold  by  Shultz  and  improved  by  the  purchasers,  should 
be  so  apportioned  that  Williamson's  executors  should  take  only  the 
ground  rent ;  and  by  the  complainants'  third  ground,  it  is  understood 
that  they  claim  to  be  entitled  to  the  rents,  as  increased  by  the  improve- 
ments. 

There  is  apparently  much  equity  in  this  order,  and  I  am  disposed  to 
think  it  may  be  vindicated  upon  principle.  There  was  no  obligation  on 
the  part  of  Shultz  to  improve  the  lots,  nor  were  the  purchasers  from  him 
bound  to  do  it.  The  mortgagee  was,  by  the  contract  entitled  to  the 
land  and  the  rents  accruing  from  it,  in  the  condition  it  then  was,  and  no 
more.  The  improvements  made  did  not  diminish,  but  increased  the  value 
of  the  rents,  regarding  them  merely  as  ground  rents,  and  according  to 
the  principle  of  the  order,  the  executors  of  Williamson  are  allowed  this 
increased  value.  In  doing  justice  to  the  lot-owners,  even  more  than  strict 
justice  is  meted  out  to  Williamson's  executors. 

4.  The  fourth  and  last  ground  is  conceded  by  the  counsel  for  the  de- 
fendants— so  much  of  the  decree  therefore  as  directs  that  Breighthaupt 
shall  account  for  the  $5000  which  he  received  under  the  order  of  the 
Federal  Court,  must  be  reversed. 

It  is  therefore  hereby  ordered  and  decreed,  that  so  much  of  the  decree 
of  the  Circuit  Court  as  directs  that  the  Commissioner  shall  advertise  in 
the  gazettes,  for  all  the  creditors  who  have  not  done  so,  to  render  in 
their  demands  by  a  day  fixed  by  him — and  so  much  thereof  as  directs  a 
*502l  ^*^'f^^6nce  to  ascertain*  whether  Breighthaupt  received  the  sum 
-^  ordered  to  be  paid  to  him  by  the  Federal  Court,  and  what  dispo- 
sition he  made  of  it,  and  what  proportion  of  it  should  have  gone  to  the 
credit  of  those  judgments  ;  be  and  the  same  is  hereby  set  aside  and 
reversed. 

And  it  is  further  ordered  and  decreed,  that  in  executing  the  order  for 
the  sale  of  the  Lehigh  tract  of  land,  the  Commissioner  do  first  sell  the 
lots  and  lands  whereof  Henry  Shultz  was  seized  at  the  time  he  was 
admitted  to  the  benefit  of  the  "  Act  for  the  relief  of  insolvent  debtors," 
the  lots  separately,  and  the  lands  not  divided  into  lots,  either  in  a  body  or 


*502] 


COLUMBIA,    JANUARY,    1834.  341 


in  parcels  as  he  may  judge  most  beneficial  to  all  concerned  ;  and  next 
lots  in  the  hands  of  purchasers,  or  so  many  thereof  as  may  be  necessary 
for  the  payment  of  all  the  liens  established  by  this  decree — reserviii"-  to 
Shultz's  alienees  the  right  of  priority  amongst  themselves  accordin"-  to 
their  deeds — the  lots  held  by  subsequent  deeds  to  be  sold  before  those 
held  by  prior  deeds,  and  when  two  or  more  deeds  have  the  same  date,  the 
Commissioner  shall  himself  determine  the  order  in  which  the  lots  slniU 
be  sold,  reserving  to  the  owners  of  the  lots  sold,  the  right  of  contribution 
from  the  owners  of  lots  that  it  may  be  unnecessary  to  sell,  if  such  should 
be  the  case.  And  to  enable  the  Commissioner  to  carry  this  order  into 
effect  without  delay,  he  is  hereby  authorized  to  require  the  owners  of  all 
lots  to  exhibit  their  title  deeds  or  other  muniments  before  him,  at  such 
times  as  he  shall  appoint — and  if  any  difficulty  should  arise  as  to  the 
order  of  the  dates  of  the  deed,  he  will  report  the  same  to  the  Circuit 
Court. 

And  lastly,  it  is  ordered  and  decreed,  that  the  decree  of  the  Circuit 
Court,  so  far  as  the  same  is  not  inconsistent  with  this  decree,  be,  and  the 
same  is  hereby  affirmed. 

O'Neall  and  Harper,  Js.,  concurred. 


INDEX. 


[The  folios  in  this  Index  refer  to  the  *  folios.  The  syllabus  formerly  appeared  as  side-Dote^,  which  we 
have  collected  and  placed  at  the  commencement  of  cases.  Therefore,  when  the  Index  refers  to  a  folio, 
the  text  will  be  found  at  the  *  folio,  and  the  syllabus  at  the  beginning  of  the  case.] 


ABATEMENT. 
See  Tenant  for  life,  3. 
ACCOUNT. 
1.  A  defendant  who,  in  his  answer,  praj'S  an  account  from   the  plaintiff,  is 
bound  to  render  an  account  of  any  moneys  due  to  the  hitter,  iilthough  the 
bill  does  not  pray  an  account  against  him.    Terry,  AdnCr,  v.  Hopkins  et  als..      9 
See  Agreement,  2.     Hike,  1,  2,  3.     Voluntary  Conveyance,  3,    Execu- 
tors AND  Administrators,  5. 

ADMINISTRATORS. 
See  Executors  anl»  Administrators. 
ADVANCEMENT. 
1.  The  doctrine  of  advancements  applies  solely  to  cases  of  intestacy.     Newman 

and  Wifey.  Wilbourne  et  als 11 

AGREEMENT. 

1.  An  agreement  to  be  sustained  and  specifically  enforced  as  a  bar  to  the  plain- 

tiff's equity,  must  be  fair,  just,  reasonable,  mutual,  and  founded  on  a  good 

or  valuable  consideration.      Cabeenv.  Gordon 56 

2.  But  an  ngreement  wanting  some  of  these  requisites,  may  avail  the  defendants 

so  far  as  to  prevent  the  account  from  being  carried  beyond  the  filing  of 
the  bill,     lb 57 

AMENDMENT. 

See  Pleading,  1.     Limitations,  Statute  of,  4. 

ANNUITY. 

1.  Where  the  testator  bequeathed  an  annuity  to  be  paid  on  the  first  of  March 

in  every  year,  and  he  died  in  September:  it  was  held,  that  the  legatee,  on 

the  first  of  March  after  the  testator's  death,  should  be  paid  a  proportion  of 

the  annuity,  equal  to  the  time  which  had  run  after  his  death.      Waring 

Bjc'or,  V.  Purcell,  Ex'trix 1"" 

APPEAL. 

1.  On  questions  of  fact,  the  concurrence  of  the  Commissioner  and  Chancellor, 

is  generally  decisive  with  this  Court.  Cabeenv.  Gordon, • 58 

2.  The  credibility  of  witnesses  is  a  question  for  the  jury  on  the  trial  of  an  issue 

at  law.     Lylesv.  Lyles,  Adm'r _• ;•      '' 

3.  That   the  presiding  Judge  had  expressed  to  the  jury  bis  opinion  of  the  evi- 

dence, is  not  a  ground  for  a  new  trial.     lb .■■."" 

4.  On  doubtful  questions  of  fact,  the  Court  will  not  interfere  with  the  decision 

of  the  Commissioner  and  Chancellor.     lb ^'■ 

5.  Costs  are  so  much  under  the  control  of  the  Chancellor,  that  they  are  not,  of 

themselves,  regarded  as  the  subject  of  appeal;  it  is  only  where  the  Appeal 
Court  reforms  or  reverses  the  Circuit  decree,  that  it  will  reverse  or  modify 
an  order  on  the  subject  of  costs,     lb ^2 


344  INDEX. 

6.  According  to  the  practice  of  this  Court,  if  a  party  except  to  the  Commis- 

sioner's Report,  anil  some  of  his  exceptions  are  sustained  and  some 
overruled,  and  the  case  is  sent  back  by  the  Chancellor  to  the  Commis- 
sioner, he  may  at  once  appeal  to  this  Court,  or  wait  until  there  is  a  final 
decree  of  confirmation,  and  then  bring  up  the  whole  case.  Sinclair  and 
Kiddle  v.  AdmWs  of  Price, 444 

7.  By  the  Act  of  1808,  a  party  hixs  the  right  to  appeal  "from  any  order  or 

decree  of  any  Judge  presiding  on  the  Circuit,"  •whether  it  be  interlocutory 

or  final       Price,  E£or,v.  Nesbit, 453 

8.  Wliere  there  has  been  no  final  judgment  in  a  cause,  a  party  may  on  appeal 

examine  the  whole  case,  and  open  for  consideration  all  prior  or  interlocu- 
tory orders  or  decrees  any  way  connected  with  the  merits  of  the  decree 
from  which  he  has  appealed;  and  this  too  notwithstanding  such  orders  or 
decrees  may  have  been  affirmed  by  the  Appeal  Court.     lb 453 

9.  So  long  as  a  decree  operates  merely  as  authority,  or  as  the  reasoning  of  the 

Court  to  prove  the  party's  right  in  whose  favor  it  is  pronounced,  it  may  be 
reviewed  and  reversed  whenever  it  comes  up  properly  before  the  Court  of 

Appeals  in  any  of  the  subsequent  stages  of  the  case,     lb 459 

See  Issue  at  Law. 
APPEALS  (COURT  OF). 

1.  Decree  of  the  Appeal  Court  when  examinable.     Price,  Ex' or,  v.  Nesbit, 453 

2.  A  Circuit  decree  affirmed  by  the  Court  of  Appeals,  if  it  is  a  final  decree,  can 

never  again  be  examined,  either  on  appeal,  by  bill  of  review  or  on  a  re- 
hearing; but  if  it  merely  establishes  a  general  right  of  recovery  and  leaves 
the  extent  of  the  recovery  to  be  afterwards  ascertained,  if  it  does  not  end 
the  controversy,  but  still  leaves  something  to  be  done  to  enable  the  Court 
to  pronounce  judgment,  it  is  examinable  on  an  appeal  from  a  final  decree. 

lb 457 

See  Issue  at  Law,  2,  3. 
ARBITRATORS. 

1.  Where  a  trustee  has  been  legally  compelled  to  pay  money,  as  the  surety  of 
his  cestui  que  trttst,  in  Equity  the  trust  estate  will  be  charged  with  the 
amount  paid;  and  where  the  trustee  and  the  principal  debtor  being  devisees 
of  tlie  estate,  with  the  other  parties  interested,  referred  all  their  "claims, 
rights  and  interest  in  said  estate"  to  arbitration,  and  the  arbitrators 
awarded  a  portion  of  the  share  of  the  principal  to  the  trustee,  in  payment 
of  the  money  advanced  by  him  as  secur.ty,  it  was  held,  that  the  arbitrators 
had  not  exceeded  their  authority,  and  the  award  was  confirmed.  Perkins 
el  als.  V.  Kershaw  et  als 349 

ASSETS. 

1.  A  wife,  being  entitled  to  a  life  estate  in  certain  negroes,  had  them  settled  to 

her  separate  use  bj'  marriage  settlement  which  had  no  schedule  annexed 
and  was  not  recorded;  the  husband  died,  the  wife  surviving,  who  adminis- 
tered on  his  estate,  received  her  portion  of  it,  married  a  second  time,  and 
died:  on  a  bill  filed  by  the  creditors  of  the  first  husband  against  the  second 
husband,  it  was  held,  that  the  life  estate  of  the  wife  in  the  negroes,  was 
not  assets  for  the  payment  of  the  debts  of  her  first  husband,  and  his  cred- 
itors were  not  entitled  to  an  account  far  their  possession  by  the  wife  after 
the  death  of  her  first  husband.     Fripp  v.  Talbird 143 

2.  The  testator,  by  his  will,  directed  his  debts  to  be  paid  out  of  the  debts  due 

him.  and  gave  certain  specific  legacies,  and  then  devised  the  residue  of  his 
estate  to  his  sister  for  life,  remainder  over,  &c.,  and  died  in  September, 
leaving  a  crop  on  his  plantation: — Held,  that  the  crop  growing  on  the  land, 
and  which  was  severed  before  tlie  last  of  December,  was  assets  in  the  hands 
of  the  executor,  for   the   payment  of  the  debts  and  pecuniary  legacies. 

Waring,  Ez'or,  v.  Purcell,  Ex.' trx, 196 

See  Debtok  and  Ckeditor,  1. 


INDEX.  345 

ASSIGNMENT. 

1.  Where  an  insolvent  debtor  rendered  in  a  schedule  of  his  estate,  in  which  was 

included  a  bond  on  the  defendant's  intestate,  and  was  discharged  according 
to  law,  but  inadvertently  omitted  to  execute  an  assignment  of  the  schedule. 
— Held,  that  under  such  circumstances,  this  was  a  good  equitable  assign- 
ment of  the  bond,  which  a  Court  of  Equity  would  set  up  and  decree  on ;  but 
that  the  insolvent  or  (in  case  of  his  death)  his  legal  representative,  should 
be  made  a  party  to  the  bill.      White  and  Hunt  v.  Follin  and  u-ifc, 187 

2.  An  assignment  by  a  debtor  to  a  trustee,  in  trust,  first  to  pay  existing  liens; 

second,  to  pay  his  sureties  whatever  sums  they  might  have  to  pay  for  his 
default  as  Commissioner  in  Equity;  third,  to  pay  the  balance  to  such  of 
his  creditors  as  should  exhibit  their  demands  within  a  year,  and  agree  in 
writing  to  take  a  dividend  of  the  surplus;  is  valid.  Vaughan  et  ah.  v.  Evans 
et  als 430 

3.  A  sale  and  conveyance  of  land  by  the  sheriff,  in  pursuance  of  an  order  from 

the  Court  of  Law  for  the  foreclosure  of  a  mortgage,  when  the  mortgagor 
was  out  of  possession,  although  void  as  official  acts,  for  the  want  of  author- 
ity in  the  Court  of  Law  to  make  the  order,  will  still  operate  as  an 
assignment  of  the  legal  estate  of  the  mortgagee.  The  sheriff  will  be  re- 
garded as  the  private  agent  of  the  mortgagee,  and  although  his  authority 
be  only  by  parol,  the  answer  of  the  mortgagee  admitting  the  facts,  is  a 
sufficient  compliance  with  the  Statute  of  Frauds.  Stoncy  et  als.  v.  Shultz 
et  als 499 

AWARD. 
See  Aebitrators. 
BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTE'S. 
See  Surety,  1.    Evidence,  2. 

BONDS. 

1.  The  penalty  of  a  bond,  conditioned  for  the  payment  of  money,  is  to  secure 
payment  of  the  whole  of  the  condition,  and  any  part  of  it  remaining  unpaid 
is  a  forfeiture  of  the  penalty — therefore  the  obligee  may  recover  the  balance 
of  the  condition  with  interest  thereon,  although  that  sum  when  added  to 
the  payments  previously  made  would  exceed  the  penalty.  Smith  and 
Cuttino  V.  Macon,  Adm'r, .339 

See  Assignment,  1. 
CASES    PARTICULARLY   REMARKED    UPON,   DOUBTED,    OR   EX- 
PLAINED. 

1.  Seabrook  ac/s  Williams,  3  M'C.  371,  explained, 30 

2.  Gough  V.  Walker,  1  N.  &  M'C.  4G9,  explained 108 

3.  Lowndes  v.  Chisolm,  2  M'C.  Ch.  405,  and  Lawrence  v.  Beaubien,  2  Bail,  623, 

considered  and  adhered  to, 250 

4.  Screven  w.  Bostick,  2  M'C.  Ch.  410,  explained, 301 

5.  Thayer  v.  Cramer,  1  M'C.  Ch.  395,  questioned  by  Chancellor  Johnston 341 

— defended  and  adhered  to  by  the  Court, 3^2 

G.  McRa  V.  Smith,  2  Bay,  339,  remarked  on, 344 

CHILDREN. 

See  Husband  and  Wife,  1,.4.     Will,  14. 

COMMISSIONER  (IN  EQUITY). 

1.  The  Commissioner,  in  making  up  accounts,  must  conform  to  the  directions 

of  the  Court;  and  if,  from  any  cause,  he  cannot,  he  should  apply  to  the 
Court  for  fresh  instructions.     Frazier  and  wifi;  v.  Vaiix,   Ex'or, 208 

2.  Where  a  Commissioner  in  Equity  who  had  been  re-elected  at  the  expiration 

of  his  first  term,  had  received  moneys  during  his  first  term  which  were 
not  demanded  or  ordered  to  be  paid  over  or  invested  during  that  term,  the 
securities  to  his  official  bond  for  the  first  term  are  not  liable  therefor,  uu- 


346  INDEX. 

less  it  be  shown  that  the  Commissioner  had  wasted,  or  converted  to  his  own 
use,  the  funds  in  his  hands;  and  in  the  absence  of  such  evidence,  the 
presumption  is  that  he  retained  the  funds  and  that  they  were  in  his  hands 

as  his  own  successor.      Vaughan  et  ah.  v.  Evans  et  als 428 

3.  But  where  the  Commissioner,  by  orders  of  the  Court  during  the  first  term, 
was  directed  to  pay  over  a  part  of  the  funds  then  in  his  hands,  and  to 
invest  a  part,  and  neglected  to  comply  with  these  orders;  it  was  held,  that 
the  failure  to  pay  over  or  invest,  was  a  breach  of  the  condition  of  the  bond, 
and  that  the  application  for  such  an  order  was  prima  facie  evidence  of  a 
demand,  and  the  sureties  to  the  bond  of  the  term  in  which  the  orders  were 
made  were  liable.  Harpee,  J.,  dissenting,  held  with  Chancellor  Johnston, 
that  the  orders  to  pay  over  were  only  an  authority  to  pay  over,  and  that 
there  was  no  default  until  demand  made;  and  that  the  failure  to  invest 
could  only  make  the  sureties  liable  for  the  interest  which  would  have  been 
made  if  the  funds  had  been  invested.     lb 429 

COMMISSIONER'S  REPORT. 
See  Practice,  3.     Appeal,  6. 
COMMISSIONS. 

1.  A  trustee  under  a  deed,  who  has  the  management  of  the  estate  of  a  minor, 

is  entitled  to  commissions  under  the  Act  of  1745,  although  he  has  failed  to 
make  returns  to  the  office  of  the  Secretary  of  State.     Muckenfuss  v.  Heath,   183 

2.  An  executor  is  not  entitled  to  commissions  for  the  years  in  which  he  has 

failed  to  make  returns ;  and  such  default  deprives  him  also  of  the  right  to 
recover  compensation  for  extra  services.     Frazier  and  loife  v.   "Vaux,  Ex'or,  210 

3.  A  private  agent  or  assignee  is  not  entitled  to  commissions,  unless  they  are 

stipulated  for  in  the  contract  creating  the  agency.     Poag,  Ex'or,  v.  Foag,  287 

CONDITION. 
See  Will,  2. 

CONFIRMATION. 
1,  A  decree  of  the  Ordinary  at  the  instance  of  the  parties  interested,  against 
the  administratrix,  which  includes  the  price  of  the  negroes  purchased  by 
her,  at  her  own  sale,  is  a  confirmation  of  the  sale.     Price,  Ex'or,  v.  Nesbit,  463 

CONSENT. 

1.  The  defendant,  an  executrix,  with  the  consent  and  approbation  of  the 
plaintiff,  her  co-executor,  delivered  a  bond  due  to  the  testator  to  a  legatee, 
under  the  belief  that  the  testator  so  intended ;  afterwards  the  plaintiff 
discovered  circumstances  which  induced  him  to  believe  that  they  had  mis- 
taken the  testator's  wishes,  and  filed  a  bill  for  settlement  and  relief:  Held, 
that  the  plaintiff,  having  given  his  consent  to  the  delivery  of  the  bond,  was 
concluded  by  it.      Waring,  Ex'or,  v.  Pur  cell.  Ex' trix, 202 

CONTRACT. 

1.  A  contract  for  the  sale  of  land  made  by  letter-correspondence  between  the 

parties  is  valid,  and  will  be  enforced  if  the  consideration  to  be  paid,  the 
time  of  payment,  and  a  description  of  the  premises,  appear  therein,  suffi- 
ciently certain  to  enable  the  Court  to  decree  a  specific  performance. 
Neufvillev.  Stuart, 166 

2.  The  defendant  in  a  letter  to  the  plaintiff's  agent,  proposed  to  purchase  a 

plantation  at  eight  thousand  dollars — six  thousand  dollars  in  cash,  and  two 
thousand  dollars  in  January  following,  and  requested  an  immediate  answer; 
the  agent,  by  return  post  replied,  accepting  the  proposal,  but  added  that 
he  presumed  the  two  thousand  dollars  were  to  bear  interest  from  the  date: 
Held,  that  this  was  a  contract  obligatory  on  the  defendant ;  and  that  the 
suggestion  in  the  letter  of  acceptance  with  respect  to  interest,  did  not 
constitute  a  new  and  distinct  term,  which  set  the  contract  afloat.     lb 167 

3.  Allowing  credit  on  a  sale  of  land  for  the  foreclosure  of  a  mortgage,  is  not  a 

violation  of  the  obligation  of  contracts.     Stoneg  et  als.  v.  Shuliz  et  als 500 


INDEX.  347 

CONTRIBUTION. 

1.  Ou  what  principles  and  under  -what  circumstances  contribution  will   be 

allowed. — To  entitle  a  plaintiff  to  contribution,  he  must  show  that  his 
payment  has  removed  a  common  burthen  from  the  defendant  and  himself ; 
and  that  defendant  has  received  benefit  from  such  payment.  Screven  v. 
Joyner,  Ez'or,  et  als 260 

2.  The  testator  devised  a  tract  of  land  called  "  Jasper's  Barony,"  to  his  sons, 

Benjamin  and  Thomas,  and  designated  the  portions  of  each  ;  a  large 
amount  of  the  purchase-money  being  unpaid,  the  vendor  filed  his  bill 
against  the  executors,  and  obtained  a  decree,  charging  the  land  with  its 
payment;  and  by  a  subsequent  decree,  it  was  ordered  to  be  sold:  these 
decrees  remained  open,  and  were  not  enforced  for  many  years ;  meanwhile 
the  devisee,  Benjamin  sold  his  portion  of  the  Barony,  and  his  purchaser 
took  and  held  possession,  until  he  acquired  a  title  under  the  statute  of 
limitations;  afterwards  the  former  decrees  were  revived,  and  by  order  of  the 
Court  of  Equity,  the  remaining  portion  of  the  Barony,  being  the  share  of 
Thomas,  was  sold  to  pay  the  purchase-money ;  on  a  bill  filed  by  Thomas 
against  Benjamin,  for  contribution: — Held,  that  as  the  lien  of  the  vendor 
under  the  decrees  in  Equity,  was  lost  and  ended  by  the  statute  of  limita- 
tion, the  payment  of  the  decree  by  Thomas,  conferred  no  benefit  on 
Benjamin,  and  consequently  he  was  not  liable  to  contribution.     lb 2G1 

COSTS. 

1.  As  a  general  rule,  the  plaintiff  in  a  bill  for  discovery  is  required  to  pay  the 

costs  ;  but  if  he  asks  a  discovery  from  the  defendant  before  filing  the  bill, 
who  refuses  it,  and  he  is  compelled  to  come  into  Equity,  the  defendant 
will  not  be  allowed  costs.     M'Ehveev.  Sutton  and  Black, 34 

2.  Costs   not   allowed   for   a   defence   to   a  petition  in  Chancery.     Ex  parte 

M'Clelland, 412 

3.  Generally,  where  a  party  makes  a  single  question  in  a  case,  and  that  ia 

decided  against  him,  he  will  not  be  entitled  to  costs;  if  he  make  several 
questions,  some  of  which  are  decided  for.  and  others  against  him,  he  will 
be  entitled  to  tax  costs  under  a  decree  allowing  them  to  him.  JPinchback 
v.  M' Craven, 413 

4.  A  charge  for  copies  of  opinions  of  the  Appeal  Court  is  admissible,     lb 414 

See  Appeal,  5.     Executors  and  Administbatoes,  6. 

COVENANT. 

See  Sheriff's  Sale,  3. 

DEBTOR  AND  CREDITOR. 

1.  Creditors  may  follow  assets  in  the  hands  of  legatees  or  distributees  and 

compel  them  to  refund:  and  the  property  may  be  followed  in  the  hands  of 
one  to  whom  it  has  been  transmitted  on  the  death  of  a  legatee  or  distribu- 
tee; there  is  no  limit  to  this  right  except  that  of  time.     Fripp  v.  Talhird..   144 

2.  Where  negroes  were  purchased  and  paid  for  by  a  debtor,  and  the  title  made 

to  his  sons,  under  the  circumstances  it  was  held,  that  a  trust  resulted  to 
debtor  in  favor  of  creditors,  and  the  negroes  were  held  liable  for  his  debts. 
Brown  tt  als.  v.  M' Donald ••  30G 

3.  Order  by  the  Chancellor  for  the  publication  of  notice  to  creditors  to  come  in 

and  prove  their  demands  reversed,  sufficient  notice  having  been  previously 

given.     Stoncy  et  als.  v.  Shultzetals. ^'^O 

See  Loan,  1.  Voluntary  Conveyance.  Assignment.  Receipt.  Trust 
Estate.  Equitable  Interest,  1.  Fraud.  Infant.  Jurisdiction, 
6,7. 

DECREE. 

See  Ordinary,     Lien.     Appeals  (Court  of),  1,  2.     Appeal,  S,  9, 

DEED. 

1.  P.  R.  M.  a  young  man  of  intemperate  habits,  was  prevailed  on  to  execute  a 

deed  of  his  property  to  his  mother  and  brother  and  sisters,  reserving  a  life 


348  INDEX. 

estate  to  himself,  with  the  understanding  on  his  part,  and  promises  on 
their's,  that  the  object  was  to  protect  his  property,  and  not  to  deprive  him 
of  the  right  to  control  and  dispose  of  it  by  will ;  but  the  deed  contained  no 
power  of  revocation,  nor  was  there  any  undue  influence  exercised;  P.  E.  M. 
afterwards  made  a  will  by  which  he  disposed  of  his  property,  and  died  : — 
Held,  that  the  deed  was  valid  and  irrevocable.  Ex'ors  of  Hopkins  v. 
Mazyck  et  als 242 

DEFENDANTS. 
1,  A  Court  of  Equity  may  decree  between  co-defendants,  on  evidence  arising 
from  pleadings  and  proofs  between  plaintiflFs  and  defendants.     Molte  v. 
Shulte  and  Matte, • 1^6 

DEVASTAVIT. 
See  HcsBAXD  and  Wife,  5,  6. 
DEVISE. 
See  Will. 
DISCOVERY. 
1.  Where  a  bill  is  for  discovery  and  relief,  in  a  case  where  discovery  is  the  only 
ground  of  Equity  jurisdiction,  it  must  be  sworn  to  ;  but  if  the  bill  is  for 
discovery  merely  no  aflidavit  is  necessary.     AI'£lwee  v.  Sutton  and  Black, ...     33 
See  Costs,  1. 
DISTRIBUTIVE  SHARES. 
1.  The  defendants  (distributees)  made  individually  liable,  on  a  bill  for  partition, 
for  what  they  had  received  over  and  above  their  distributive  shares,  where 
the  administrator  was  insolvent.     Lyles  v.  LyUs,  AdmW 91 

See  Vendor  and  Puechaser.     Partition,  1.     Debtor  and  Creditob,  1. 

DIVORCE. 
See  Marriage, 
EQUITABLE  INTEREST. 
1.  The  plaintiflF  made  a  shipment  on  joint  account  with  L.,  who  sold  and  inves- 
ted the  proceeds  in  merchandise  shipped  on  board  the  brig  Eliza,  and  gave 
the  plaintiff  a  written  acknowledgment  to  this  affect ;  L.  stopped  payment, 
and  assigned  his  estate,  including  the  cargo  of  the  Eliza,  to  the  defendants, 
as  trustees  for  the  payment  of  certain  preferred  debts,  who  sold  the  same, 
and  applied  the  proceeds  according  to  the  deed  ;  on  a  bill  filed  by  the 
plaintiff  against  the  assignees.  Held,  that  the  plaintiff  was  an  equitable 
owner  of  the  cargo  to  the  extent  of  his  investment,  and  that  if  the  defend- 
ants had   paid  away  the  proceeds    with  a  knowledge  of  the    plaintiff's 
equity,  they  were  liable  to  account  to  him. — Reference  ordered  to  ascertain 
whether  the  defendants  had  paid  away  the  funds,  and  if  so,  whether  with 

or  without  a  knowledge  of  the  plaintiff's  claim.     Plunkett  v.  Carew, 171 

See  Assignment,  1. 

EQUITY  OF  REDEMPTION. 
See  Mortgage,  2,  4. 

EVIDENCE. 

1.  Where  delivery  of  possession  is  relied  on,  as  evidence  of  a  gift,  the  subse- 

quent declarations  of  the  donor,  will  not  be  competent  to  vary  the  legal 
consequences.     Newman  and  ivife  y.  Wilbourne,  Ex'or,  et  als 13 

2.  Where  a  note  is  signed  only  by  the  maker  affixing  his  mark,  and  the  sub- 

scribing witness  is  the  executor  of  the  (deceased )  payee,  the  note  cannot 
be  given  in  evidence  on  proof  of  the  handwriting  of  the  witness;  it  must  be 
shown  that  the  note  existed  before  the  witness'  interest  accrued.  Lever  v. 
Lever, 68 

3.  When  the  credit  of  a  witness  is  impeached,  by  proof  that  he  has  made  decla- 


INDEX.  349 

rations  inconsistent  with  -what  he  has  sworn  to :  in  reply  to  such  evidence 
proof  of  his  declarations  on  other  occasions,  consistent  with  what  he  has 

sworn  to,  is  admissible.     Lyles  v.  Lyles,  Adni'r yr 

4.  The  testator  by  his  will,  directed  the  remainder  of  his  estate  to  be  sold,  and 
the  proceeds  to  be  equally  distributed  among  his  grand-daughters,  and  adds 
"I  allow  my  undernamed  executors  to  retain  the  aforesaid  children's  parts 
in  their  hands,  until  the  children  arrive  at  maturity;"  on  a  bill  filed  against 
the  executors  to  account,  it  was  held,  that  parol  evidence  was  admissible  to 
show  that  the  executors  retained  the  legacies  in  their  bands  without 
making  interest  on  them,  in  consequence  of  an  agreement  with  the  testator 
that  they  should  not  be  bound  to  invest  the  fund  or  make  interest,  nor  be 
chargeable  with  interest  on  their  failure  to  do  so ;   and  that  they  accepted 

the  executorship  on  that  condition.      Chesnut  and  wife  et  als.  v.  Slrong 125 

See  Trustee,  1.     Witness.     Principal  and  Aqent,  -3. 

EXECUTION. 

See  Insolvent  Debtor,  1. 

EXECUTORS  AND  ADMINISTRATORS. 

1.  One  legatee  cannot  compel  another  to  account  for  a  debt  due  to  the  estate, 

none  but  the  executor  has  that  right.    Newman  and  wife  v.  Wilbourne,  Ex'or, 

et  als 12 

2.  Where  an  administrator,  in  the  course  of  his  administration,  on  a  sale  of  his 

intestate's  property,  took  a  note  payable  to  himself  as  such,  and  dies  ;  and 
administration  de  bonis  non  is  granted,  although  the  legal  right  to  the  note 
is  in  the  first  administrator,  yet  the  equitable  right  is  in  the  administrator 
de  bonis  non;  and  if,  on  a  final  settlement  of  accounts,  the  amount  of  the 
note  appears  to  be  due  from  the  estate  of  the  first  administrator,  the 
administrator  de  bonis  non  will  be  entitled  to  the  possession  of  the  note. 
Miller  v.  Alexander, 29 

3.  The  Court  will  not  discharge  an  executor  from  his  oiSce.     Hahjood  v.  Wells.     61 

4.  The  Court  of  Equity  has  no  power  to  substitute  an  executor  in  the  place  of 

another;  but  where  an  executor  has  removed  from  the  State,  leaving  his 
cestui  que  trusts  and  the  trust  estate,  the  Court  will,  on  the  application  of 
the  ces/Mt"  ?«« /n<«('s,  appoint  a  receiver.     Ex  parte  Galluchat 150 

5.  An  executor,  in  the  management  of  a  planting  interest,  applied  the  avails  of 

the  crops  to  the  purchase  of  negroes  for  the  estate,  and  worked  them  for 
several  years  on  the  plantation,  and  kept  regular  accounts  of  the  proceeds 
of  each  crop  ;  the  investment  being  unauthorized,  the  legatee  refused  to 
receive  the  negroes  ;  on  a  bill  filed  against  the  executor  for  an  account,  he 
was  put  on  the  footing  of  a  part  owner  and  held  entitled  to  a  proportionate 
share  of  the  crops,  after  making  allowance  for  the  rent  of  the  land.  Frazier 
and  wife  v.   Vauz,  Ex  or 206 

6.  An  executor  or  administrator  who  litigates  in  good  faith,  will  be  reimbursed 

out  of  the  estate  for  his  costs  and  expenses,  but  the  estate  he  represents, 
and  which  is  presumed  to  be  benefited  by  the  litigation,  must  bear  the 
expense.      Capchart  and  wife,  et  als.  v.  Adm'rs  of  Huey ^H 

7.  A  sale  by  an  administratrix,  where  the  administration  was  afterwards  re- 

voked on  a  will  being  admitted  to  probate,  is  valid  if  there  be  no  fraud;  and 
that  the  administratrix  was  herself  the  purchaser  does  not  render  the  sale 
void.     It  can  only  be  avoided  at  the  instance  of  the  legatees  and  not  of  the 

executor.     Price,  Ex'or,  \.  Nesbit ^"^ 

See  Husband  and  Wife,  3,  4,  5,  6.  Jurisdiction,  1,  5.  Hire.  Ordinary,  2. 
Commissions,  2.     Fraud,  4. 

FEE  CONDITIONAL. 
S«e  Merger,  2. 

FEME  COVERT. 
See  Husband  and  Wife.     Tenant  for  life,  3.     Recording,  -. 


350  INDEX. 

FORECLOSURE. 

See  Mortgage,  2. 

FRAUD. 

1.  The  fraud  of  a  third  person  may  sometimes  .vitiate  a  conveyance — a  party 

to  the  conveyance  shall  not  be  allowed  to  derive  any  advantage  from  such 
fraud;  but  in  setting  aside  such  a  conveyance,  the  Court  will  take  care 
that  innocent  persons  shall  not  suffer.  M'Meekan  v.  Edmunds  and  icife,  el 
als 293 

2.  It  is  not  indispensably  necessary  to  establish  fraud  in  a  deed,   that  the 

grantor  was  indebted  at  the  time  of  its  execution,  or  that  it  was  executed 
with  a  view  to  future  indebtedness;  it  may  be  avoided  by  showing  that 
the  sale  was  merely  colorable.     Broton  et  als  v.  McDonald 303 

3.  Where  the  grantor,  being  indebted,  conveyed  his  land  to  his  mother,  fur  a 

valuable  consideration,  which  was  paid  and  applied  to  his  debts,  and  it 
•was  agreed  at  the  time,  that  he  should  retain  possession  of  the  land  during 
his  life,  and  it  should  go  to  his  children  on  his  death,  and  he  did  bold 
possession,  and  the  grantee  afterwards  devised  the  land  to  the  grantor's 
children :  the  conveyance  was  held  to  be  fraudulent  as  to  creditors,  and  set 
aside.     lb 304 

4.  Where  a  bill  is  filed  by  creditors  to  avoid  the  alienation  of  a  deceased  person 

for  fraud,  his  executor  or  administrator  is  a  necessary  party;  and  if  the 
Court  should  set  aside  the  conveyance,  it  will  order  the  property  to  be 
delivered  to  the  executor  or  administrator,  to  be  applied  in  due  course  of 
administration.   The  suing  creditors  are  not  entitled  to  have  their  demands 

paid  out  of  the  property,  in  preference  to  others.     Brock  v.  Bowman 338 

See  Voluntary  Conveyance,  1,  2.  Sheriff's  sale,  1,  2.  Reimbursement,  1. 
Debtor  and  Creditor,  2. 

FRAUDS,  STATUTE   OF. 

See  Contract,  1,  2.     Assignment,  3. 

GIFT. 

See  Evidence,  3. 

GUARDIAN  AND  WARD. 

1.  The  Court  of  Chancery  may  order  the  funds  of  an  infant  under  its  control, 

to  be  paid  to  a  guardian  residing  and  appointed  in  another  State,  but  in 
doing  so,  will  take  every  precaution  to  guard  against  abuse  and  loss  to  the 
infant :  the  Court  will,  in  such  case,  order  a  reference  to  ascertain  the  fact 
of  the  guardian's  appointment,  his  fitness  and  whether  sufficient  security 
has  been  given.     Ex  parte  Smith 141 

2.  Generally  those  acts  of  a  guardian  are  binding  on  the  infant  which  are  for 

the  benefit  of  the  infant,  and  for  which  the  guardian  can  account;  he  may 
therefore  in  a  suit  brought  for  the  benefit  of  his  wards,  execute  a  release 
in  order  to  render  a  witness  competent.  Capehart  and  wife,  et  als.,  v.  The 
Adnirs  of  Huey 409 

HIRE. 

1.  A  trustee  who  has  neglected  to  make  annual  accounts  will  be  charged  for 

negro  Lire,  at  £10  for  full,  and  £5  for  half,  task  hands.  Lyles  v.  Lylcs, 
Adrn'r 87 

2.  If  one  obtain  possession  by  force  or  fraud,  and  forces  another  out  of  the 

administration,  he  may  be  held  to  account  at  a  higher  rate  ;  the  rule  was 
intended  to  apply  only  to  cases  where  the  party  stands  in  an  amicable 
relation  as  trustee,  guardian,  executor,  &c.,  and  is  a  substitute  for  the 
regular  annual  account.     lb 89 

3.  The  £10  rule  for  the  hire  of  negroes,  does  not  apply  to  a  c^se  where  there 

has  been  an  account  kept  of  the  proceeds  of  their  labor.     Frazier  and  wife 

V.  Vaux,  Ex' or 206 


i 


INDEX.  351 

HOTCHPOT. 

See  Advancement. 
HUSBAND  AND  WIFE. 
.  .  Where  a  widow,  before  her  second  marriage,  conveys  her  property  to  the 
children  of  her  first  marriage,  reserving  only  a  life  estate  in  a  portion,  to 
herself,  and  this  was  known  to  her  intended  husband,  the  conveyance  is 
not  a  fraud  on  his  marital  rights,  but  is  valid.  Terry  Adm'r,  v.  Hopkins 
et  ah 4 

2.  When  a  parent  gave  a  slave  to  his  daughter,  on  her  marriage,  on  condition 

that  he  should  have  a  right  to  take  him  back,  on  paying  his  value,  or 
substituting  other  property;  the  marital  rights  of  the  husband  attach,  and 
the  right  of  property  vests  in  him,  subject  to  that  condition,  and  devolves 
on  his  administrators,  after  his  death,  to  the  same  extent,  and  in  the  same 
condition.      lb 6 

3.  A  husband  who  has  administered  on  his  wife's  estate,  cannot  be  reimbursed 

out  of  it,  for  payments  made  by  him,  during  coverture,  on  a  contract  of 
the  wife  before  marriage;  hut  he  will  be  entitled  to  credit  for  any  payment 
on  that  account,  since  her  death.     lb 7 

4.  A  husband,  as  the  administrator  of  his  wife,  will  not  be  allowed  to  raise  an 

account  against  her  children  by  a  former  marriage,  for  her  care  and  trouble 
in  attending  to  them  before  her  second  marriage,  and  for  raising  young 
negroes,  when  she  herself,  made  no  such  charges.     lb 8 

5.  Where  administration  was  granted  to  husband  and   wife  in  right  of  the 

wife,  and  the  administration  bond  was  signed  by  both,  the  wife  is  not  bound 
by  the  bond;  and  after  the  husband's  death,  she  is  not  liable  for  his  devas- 
tavit during  the  administration;  and  so  much  of  the  estate  as  remains 
unchanged  is  subject  to  partition  between  the  wife  and  the  other  distri- 
butees, the  wife's  interest  therein  surviving  to  her.  But  as  regards  such 
part  of  the  estate  as  the  husband  had  wasted,  the  wife  is  not  entitled  to  a 
share  thereof — and  on  a  bill  filed  by  the  security  to  the  administration 
bond,  against  whom  a  judgment  at  law  had  been  obtained  for  the  whole 
estate,  relief  was  granted  to  this  extent,  and  credit  given  him  on  the 
judgment  for  her  share  of  so  much  of  the  estate  as  had  been  wasted.  Spann 
v.  Sleivart  et  ah 332 

6.  The  husband  (or  if  he  be  dead,  his  administrator)   is  accountable  for  the 

funds  of  the  wife's  intestate  which  have  come  into  his  or  her  hands  during 
coverture,  and  which  may  not  be  left  in  specie  at  the  husband's  death  and 
go  into  the  wife's  possession.    Capehart  and  wife,  et  ah.,  v.  Adm'rs  of  Hucy.  410 
See  Tenants  fok  Life,  3.     Mareiage  Settlement.     Assets,  1.     Trust 
Estates,  5,  6.     Marital  Rights.     Marriage. 

INFANT. 
1,   Quere,  whether  a  promise  by  a  parent  indebted  at  the  time,  to  pay  an  infant 
for  his  services,  will  support  a  deed  against  the  other  creditors  ?     Brown 

et  ah.  v.  M'Donald 305 

See  Guardian  and  Ward. 

INJUNCTION. 

1.  By  the  Act  of  1825,  p.  19,  an  injunction  granted  by  the  Commissioner  con- 
tinues in  force  no  longer  than  the  coming  in  of  the  answer;  after  which  the 
Chancellor  may,  in  his  discretion,  grant  a  new  injunction  or  make  such 
other  "order  on  the  bill  and  answer  as  the  case  may  require;"  and  this 
Court  will  not  attempt  to  control  in  him  the  exercise  of  this  discretion,  but 
upon  a  plain  case  of  obvious  error  or  mistake.     Jwjnot  v.  Hah  et  als 4oU 

INSOLVENT  DEBTOR. 

1.  Where  a  debtor  had  been  arrested  under  a  ca.  sa.  and  admitted  to  the  benefit 

of  the  Prison  Bounds  from  whence  he  made  his  escape:— i/eW,  that  the 
plaintiff  might  afterwards  take  out  a  fi.  fa.     Green  v.  Ahxand.r  et  als.....    lo8 

2.  The  10th  section  of  the  Insolvent  Debtors'  Act,  which  incapacitates  the  debtor 


352  INDEX. 

from  pleacling  the  Statute  of  Limitations,  relates  only  to  demands  existing 

at  the  time  of  exhibiting  his  petition.     Frescott  v.  Ilubbell  et  ah 212 

INTEREST, 

See  Loan,  1.     Evidence,  4.     Bonds. 

INTESTACY. 

See  Advancements. 

ISSUE  AT  LAW. 

1.  The  object  of  an  issue  at  law,  is  to  satisfy  the  Chancellor  as  to  the  truth  of 

certain  facts,  and  he  may  look  at  the  report  of  the  trial  and  collect  what 
may  satisfy  his  conscience;  and  if  upon  the  whole,  he  is  satisfied  that 
justice  has  been  done,  he  may  refuse  a  new  trial,  although  evidence  has 
been  improperly  rejected  at  law.     Lyles  v.  Lyles,  AdrnW,  et  ah 81 

2.  The  Court  of  Appeals  in  Chancery  has  the  right  to  order  an  issue  at  law, 

and  it  has  exercised  this  right  ever  since  its  organization.  Sinclair  and 
Kiddle  V.  Adm'rs  of  Price 440 

3.  The  Court  ordering  the  issue,  has  the  power  of  deciding  on  a  motion  for  a 

new  trial;  but  unless  the  decision  upon  the  verdict  in  issue  involve  a 
reversal  of  some  previous  decree  in  the  case,  the  Chancellor  on  the  Circuit 
should  hear  and  determine  a  motion  for  a  new  trial  of  an  issue  ordered  by 

the  Appeal  Court,     lb , 442 

See  Appeal,  2,  3. 

JOINT  TENANTS  AND  TENANTS  IN  COMMON. 

1.  "Where  land  is  held  jointly,  each  co-tenant  has  a  right  to  the  enjoyment,  to 

the  extent  of  his  interest;  and  if  one  tenant  voluntarily  abandon  his 
possession,  the  other  remaining,  will  not  be  accountable  for  the  rent  of  the 
entire  tract,  but  only  of  such  portion  as  has  been  rendered  productive  by 
the  labor  of  the  tenant  who  abandoned  it.      Valentine  \.   Johnson 49 

2.  Where  one  joint  tenant  is  in  possession  of  land,  and  his  co-tenant  is  indebted 

to  him  on  account  of  the  purchase-money,  the  rents  and  profits  must  be 
applied  to  the  payment  of  that  debt ;  first  to  the  interest  which  had  ac- 
cumulated up  to  the  time  the  rent  became  due,  and  then  to  the  accruing 
interest,  before  any  part  is  applied  to  the  principal.     Jb 50 

3.  A  co-tenant  has  the  right  of  enjoyment  to  the  extent  of  his  interest,  and  is 

not  liable  for  rent,  unless  he  cultivated  to  a  greater  extent  than  his  interest, 
or  unless  he  has  expelled  his  co-tenant,  or  keeps  her  out  of  possession. 

Lyles  V.  Lyles,  Adm'r,  et  ah 86 

See  Tenant  fok  life,  3.  Marital  Rights,  4. 
JUDGMENT. 
1,  Judgments  bind  lands  throughout  the  State  when  abstracts  of  them  have 
been  forwarded  to  the  Clerk  in  Charleston.  And  where  judgment  was 
obtained  in  one  district,  and  land  lying  iu  another  was  afterwards  sold  by 
the  defendant: — Held,  that  it  will  be  presumed  that  an  abstract  was 
forwarded  to  Charleston,  and  that  the  land  was  bound  by  the  judgment. 

Dawkins  and  Littlejohn  v.  Smith, .' 369 

See  Jurisdiction,  6,  7.     Lien. 
JURISDICTION  (CHANCERY). 

1.  The  Court  of  Equity  will  entertain  jurisdiction  of  a  bill  by  an  administrator 

against  a  distributee  in  possession,  or  one  claiming  under  him,  in  order  to 
prevent  circuity  of  action,  and  to  enable  the  latter  to  set  up  an  equitable 
demand  against  the  estate.    Hinsonand  Wife  \.  Picket — Myers,  Adm'r,  Picket,     41 

2.  Where  a  defendant  is  in  possession  of  property,  which  is  claimed  in  different 

rights,  by  two  plaintiffs  in  separate  bills  against  him,  the  Court  of  Equity 
will  entertain  jurisdiction  of  both  cases,  and  decide  in  favor  of  the  para- 
mount title,  in  order  to  prevent  further  litigation  between  the  parties.    lb..     42 

3.  Existing  equities  between  the  parties,  will  give  jurisdiction  in  Equity;   and 

if  the  Court  can  see  that,  after  sending  the  plaintiff  to  law,  the  defendant 


INDEX.  353 

will  bring  liim  bnck  to  set  up  his  equity,  the  Court  will  retain  the  bill, 
and  decree  at  once  on  the  questions  made,     lb 4j 

4.  Equity  will  entertain  jurisdiction  to  set  aside  a  fraudulent  deed.     M'Meekin 

V.  Edmonds  and  xvife,  ct  als '2.\s7i 

5.  If  an  executor  or  administrator  find  the  atfairs  of  the  estate  so  complicated 

as  to  render  the  administration  difficult  and  unsafe,  he  may  institute  pro- 
ceedings in  Equity  against  all  the  creditors  to  have  their  claim  adjusted  by 
the  Court,  and  to  obtain  its  judgment  for  hi-j  guide.  There  is  no  diiference 
in  this  respect  between  an  executor  and  administrator.  Brown  et  als.  v. 
M'Dotmld 800 

6.  The  general  rule  is  that  a  creditor  must  first  obtain  a  judgment  at  law  before 

he  can  ask  relief  in  Equity;  but  this  rule  applies  only  where  the  Cou;tis 
called  on  to  aid  a  creditor  in  furtherance  of  his  legal  remedy;  it  has  no  ap- 
plication when  the  Court  is  asked  to  give  effect  to  its  own  judgment.  And 
therefore,  where  on  a  bill  by  an  administrator  against  creditors  to  marshal 
the  assets,  &c.,  an  injunction  was  obtained  restraining  proceedings  at  law, 
and  creditors  came  in  and  established  their  demands;  this  is  a  judgment  of 
the  Court  of  Equity:  and  if  the  creditors  afterwards  file  their  bill  to  set 
aside  certain  conveyances  by  the  intestate  as  fraudulent,  and  it  appears 
from  the  bill  that  they  have  no  remedy  at  law,  they  will  be  entitled  to  relief 
in  Equity.     lb 301 

7.  A  creditor  who  has  obtained  judgment,  sued  out  execution  and  levied  it  on 

property  in  which  the  debtor  has  the  equitable  but  not  the  legal  estate,  is 
entitled  to  the  aid  of  the  Court  of  Equity,  to  make  the  property  available 

in  payment  of  his  demand.     Perry  v.  Nixon 336 

See  Surety,  1.     Tenant  for  life,  1,  2,  4. 
LAPSE  OF  TIME. 

1.  Lapse  of  time  in  Equity,  in  analogy  to  the  Statute  of  Limitation  at  Law, 

will  be  a  bar  to  relief  against  fraud.     Prescott  v.  Ilubbdl  et  als 213 

2.  Where  one  being  sole  legatee  under  a  will  administered  with  the  will  an- 

nexed, took  possession  of  the  property  and  held  it  for  upwards  of  twenty 
years  and  the  will  was  then  declared  void  and  the  probate  revoked: — Held, 
that  this  possession  conferred  title  as  against  all  persons  who  were  not 
under  legal  disabilities,  and  that  after  such  a  lapse  of  time  the  Court  will 
presume  whatever  is  necessary  to  give  efficacy  to  the  possession.  Riddle- 
hoover  et  als.  v.  Kinard,  AdrnW 378 

LEGACY. 

Lapsed  Legacy — See  Will,  4,  5.     Vested  Legacy — See  Will,  G. 
LIEN. 
1.  The  lien  of  a  decree  in  Chancei'y,  commences  from  the  day  on  which  it  is 

delivered  to  the  Commissioner,  and  filed  by  him.     Dawson  v.  Scriven 177 

See  Judgment,  1. 

LIMITATION  OF  ESTATES. 

1.  A  bequest  of  personal  .property  in  the  following  words,   "I  lend  to  my 

daughter,  P.  S.,  four  negroes  [naming  them]  during  her  natural  life,  and 
then  to  the  heirs  of  her  body,"  vests  the  absolute  estate  in  the  first  taker. 
IlinsoJi  and  icifev.  Pickett — Myers,  Adrn'r,  v.  Pickett, 37 

2.  After  a  bequest  to  P.  S.,  during  her  natural  life,  a  limitation   over  to   the 

heirs  of  her  body,  enlarges  the  life  estate  into  an  absolute  one,  unless  the 
remainder  can  take  eifect.     lb 39 

3.  Eff"ect  of  the  word  "  ^/iew,"  in  such  a  bequest.     lb 3'J 

4.  The  appointment  of  executors  in  a  will  "for  the  intents  and  purposes  therein 

contained,"  will  not  control  the  legal  eifect  of  words  creating  a  limitation 
over  to  the  heirs  of  one's  body.     lb 39 

5.  Where  a  settlement  of  certain  negroes  was  made  to  the  use  of  husband  and 

wife  during  their  joint  lives,  and  to  the  use  of  the  survivor,  with  a  limi- 
tation over;  it  was  held,  that  upon  the  death  of  the  husband,  a  legal  estate 
vested  in  the  wife  for  life,  which  was  subject  to  levy  and   sale  under 
YoL.  I.— 23 


354  INDEX. 

execution;  but  that  the  purchaser  at  sheriff's  sale,  should  before  delivery, 
give  bond  and  security  for  the  forthcoming  of  the  property  on  the  termina- 
tion of  the  life  estate.     Pringle  et  als.  v.  Allen 136 

C.  Where  the  testator  bequeathed,  viz.  :  "to  my  son  Thomas  and  to  him  and 
his  heirs  and  assigns  forever,  the  following  negroes,  [naiaing  thfem]  and 
should  he  die  without  lawful  issue,  the  said  negroes  shall  return  to  my 
other  surviving  children ;"  Held,  that  the  limitation  over  was  good.  Cordis 
v.  Ardrian 155 

7.  AVhere  the  testator  devised  a  tract  of  land  to  his  son  "  John,  and  to  him  and 

his  heirs  and  assigns  forever ;  but  if  he  should  die  without  lawful  heir,  or 
before  he  is  twenty-one  years  old,"  then  the  land  to  go  to  another  son :  the 
word  ^'' OT^'  was  construed  '^  and"  and  it  was  held,  that  John  took  an 
absolute  estate,  in  fee,  defeasible  on  his  dying  without  issue  under  twenty- 
one  years  of  age ;  that  the  limitation  over,  was  not  after  an  indefinite  failure 
of  issue,  but  restricted  to  the  event  of  the  devisee's  dying  without  issue 
under  twenty-one.  and  was  therefore  good  as  an  executory  devise.  Adams 
(t  als.  v.  Chaplin  et  als 2G7 

8.  Where  there  was  a  devise  to  J.  C,  "  but  if  he  should  die  without  an  heir 

lawfully  begotten  by  him,"  then  a  limitation  over : — Held,  that  the  limitation 
was  too  remote  and  therefore  void.     lb 2G8 

1).  Devise  in  '76,  to  J.  C.  without  words  of  perpetuity  or  inheritance,  "but  if 
he  should  die  without  an  heir  lawfully  begotten  by  him,"  then  a  limitation 
over — the  limitation  being  too  remote  and  therefore  void,  it  was  held,  that 
under  the  act  of  1824,  and  the  adjudged  cases  since,  the  devisee  J.  C.  took 
an  estate  in  fee.     lb 281 

10.  Conveyance  in  trust  for  the  separate  use  of  the  grantee's  daughter  S. 
during  her  life,  remainder  to  such  child  or  children  of  S.  "as  may  be  then 
living,  or  who  shall  marry,  or  attain  twenty-one  years,"  the  trust  was 
executed  in  the  children  of  S.  on  her  death,  and  the  legal  estate  then  vested 

in  them.     S/>a/m  and  loife  \.  Jennings  et  als 324 

See  Will,  14,  15,  1(3. 
LIMITATIONS  (STATUTE  OF). 

1 .  The  possession  of  an  agent  or  bailee  is  not  adverse  until  after  demand  ;  and 

when  an  agent  or  attorney  receives  money  for  his  principal,  there  is  no 
cause  of  action  till  demand,  and  the  statute  of  limitations  does  not  begin  to 
run  until  then.     Lever  v.  Lever, 67 

2.  The  statute  of  limitations  runs  from  the  discovery  of  a  fraud.     Eigleberger 

et  als.  v.  Kibler 121 

3.  The  difference  with  regard  to  the  Statute  of  Limitations,  as  applied  to  a  case 

of  fraud  at  Law  or  in  Equity,  is  in  the  time  at  which  the  cause  of  action  is 
considered  to  accrue  ;  at  law,  the  cause  of  action  is  regarded  as  accruing 
from  the  perpetration  of  the  fraud,  in  Equity  from  its  discovery,  and  there- 
fore in  Equity  the  statute  will  bar  i-elief  against  fraud  in  four  years  after 
discovery ;  and  to  take  the  case  out  of  the  statute  it  should  be  stated  in 
the  bill,  that  the  fraud  was  not  discovered  until  within  four  years  before 
the  bill  was  filed.     Frescott  v.  Ilubbell  et  als 214 

4.  The  Court  refused  to  permit  the  plaintiff  to  amend  his  bill,  so  as  to  allege 

that  the  fraud  was  discovered  within  four  years,  when  it  appeared  the  fraud 
was  known  to  the  plaintiff  before  that  time.     lb 217 

5.  A  party  coming  into  Equity  for  relief  against  a  fraudulent  deed,  must  come 

within  four  years  after  the  fraud  was  discovered.     Farr  v.  Farr,  Ex,'' or...  .   391 
G.   And  the  same  lapse  of  time  (four  years)  will  bar  relief  against  fraud  in  a 

deed  for  land,  as  well  as  for  personalty.     lb 392 

See  Tenant  for  life,  3.     Insolvent  Debtor,  2. — Lapse  of  Time. 

LOAN. 
1.  Where  the  testator  had  loaned  negroes  to  his  son-in-law  ;  which  he  afterwards 
permitted  him  to  sell,  and  to  apply  the  proceeds  to  his  debts ;  the  amount 
for  which  they  were  sold  will  be  regarded  as  a  loan  without  interest,  until 

payment  was  demanded.     Neioma)i  and  icife  y.  Wilbourne,  Ex'or,  et  als 12 

See  Will,  1. 


INDEX.  ODD 

MARITAL  RIGHTS. 

1.  Where  the  wife,  being  sole  next  of  kin  to  deceased  infants,  and  entitled  to 

their  whole  estate,  and  there  being  no  debts,  before  her  marriage,  took 
possession  of  the  estate  without  administration,  and  the  husband,  after 
marriage  had  a  like  possession: — Held,  that  the  marital  rights  of  the 
husband  attached  on  the  personal  estate  of  the  deceased  children,  and  it 
vested  in  him.     Spann  and  ivifev.  Jennings  el  als 325 

2.  One,  being  sole  legatee,  took  possession  and  held  the  property  upwards  of 

twenty  years,  and  the  will  was  then  declared  void: — Held,  that  the 
possession  conferred  title,  as  against  those  who  were  not  under  legal 
disabilities;  and  the  legatee  having  married,  and  her  husband  obtained 
possession,  the  marital  rights  attached  as  against  those  not  under  disabil- 
ities.    Riddlchoovcr  et  als.  v.  Kinard,  Adni'r ; 382 

?.  An  administrator  in  possession  of  his  intestate's  estate  died,  and  the  funds 
fell  into  the  hands  of  his  administrator.  The  widow  was  then  appointed 
administratrix  dc  bonis  non,  and  guardian  of  her  children,  who  were  en- 
titled to  distributive  shc^res  of  the  estate,  and  afterwards  married  the 
plaintiff,  and  together  with  her  husband  received  the  estate  from  the 
administrator  of  the  first  administrator: — Held,  that  in  respect  to  the  fund 
thus  received,  the  plaintiff  was  not  clothed  with  a  representative  character, 
that  he  received  it  from  the  administrator  in  the  character  of  husband,  and 
consequently  that  the  marital  rights  attached.     Boozer  v.   Wallace  et  als....  395 

4.  Where  the  wife  before  marriage  was  a  joint  tenant  of  slaves,  which  went  into 
the  possession  of  her  co-tenant  in  her  lifetime: — Held,  that  this  was  such 
a   possession  by  her,   as  that  the  marital  rights  of  her    husband  would 

attach.     Burgess  y.  Heape 404 

See  Husband  and  Wife,  1,  2,  5. 
MARRIAGE. 

1.  The  defendant  having  married  in  Maryland,  was  divorced  a  mensa  et  thoro  and 
afterwards  ( his  wife  there  living)  married  the  plaintiff  in  this  State,  and 
took  a  possession  of  her  property;  on  a  bill  filed  to  compel  an  account  and 
surrender  of  the  property,  the  marriage  here  was  declared  void,  and  the 
defendant  ordered  to  surrender  the  property,  and  account  for  the  rents  and 
profits.      Young  y.  Nay  lor 383 

MARRIAGE  SETTLEMENT. 

1.  Settlements  in  pursuance  of  marriage  articles,  must  not  always  be  made 

according  to  their  legal  import,  but  in  conformity  with  the  intention  of  the 
parties.     Smith  v.  Maxwell 103 

2.  S.,  before  marriage,   executed  articles  stipulating  to  make  a  settlement  of 

his  whole  estate,  to  his  wife,  during  his  life,  and  at  his  death  to  be  equally 
divided  between  her  and  the  children  of  the  marriage :  the  wife  died,  her 
husband  and  one  child  her  surviving:  on  a  bill  filed  by  the  child,  to  carry 
the  articles  into  effect : — Held,  that  he  was  only  entitled  to  a  moiety  of 
the  property  secured  by  the  articles,     lb 104 

3.  Where  the  Court  of  Equity  by  a  decretal  order  directed  the  legacy  of  the 

wife  for  which  a  decree  had  been  obtained,  to  be  settled  to  her  separate  use, 
&c.,  according  to  the  trusts  of  the  will,  this  is  not  a  marriage  settlement 
which  need  be  recorded;  and  a  deed  afterwards  executed  to  the  wife  3 
trustee,  is  not  void  because  not  recorded  as  a  marriage  settlement. 
M'Jleeki)i  V.  Edwards  atid  wife,  et  als -*'" 

MARSHALING  ASSETS. 
See  Jurisdiction,  5. 

MERGER. 

1.  The  doctrine  of  merger  considered,     Adams  et  als.  v.  Chaplin  e(  als 270 

2.  Where  a  foe  simple  conditional  is  granted,  the  whole  estate  is  in  the  tenant 

in  fee — there  is  no  estate  left  in  the  grantor.  The  possibility  of  reverter, 
on  the  determination  of  the  fee  by  the  death  of  the  tenant  without  heira 


356  INDEX. 

of  his  body,  is  not  an  estate,  it  is  neither  the  subject  of  inheritance  nor 
devise  ;  and  therefore,  the  fee  conditional  in  the  heir-at-law,  cannot  merge 
in  the  possibility  of  reverter,  if  they  should  both  meet  in  the  same  person. 
lb 276 

MISTAKE. 

1.  The  decision  in  Lawrence  v.  Beaubien  (2  Bail,  G23)  considered  and  adhered 

to.     Distinction  taken  between  ignorance  and  mistake  of  the  law ;  the  first 

is  not  susceptible  of  proof,  and  cannot  therefore  be  relieved ;  but  mistake 

may  be  proved,  and  when  proven  relief  will  be  afforded.    Ex'ors  of  Ilopkim 

V.  Mazyck  et  als 250 

See  Consent,  1.     Receipt. 
MORTGAGE. 

1.  Where  a  mortgage  of  land  having  been  recorded,  the  land  was  sold  by  the 

mortgagor  and  the  purchaser  took  possession:  Ueld,  that  the  recording  was 
notice  to  the  purchaser,  arid  the  statute  of  limitations  will  not  bar  the 
mortgage  lien.  The  decision  in  Thayer  v.  Cramer,  1  M'C.  Ch.  395,  con- 
sidered and  adhered  to.     Smith  and  Cuttino  v.  Osborne  et  als 342 

2.  Under  the  Act  of  1791,  the  Court  of  Law  has  no  authority  to  foreclose  a 

mortgage  of  lands  where  the  mortgagor  is  out  of  possession;  and  the  sheriff 
having  in  such  case,  under  an  order  of  the  Court  of  Law,  sold  the  mort- 
gaged premises  and  received  the  purchase-money  and  applied  it  to  the 
satisfaction  of  the  mortgage  and  a  judgment  against  the  mortgagor,  the 
sale  is  void,  and  the  purchaser  has  the  right  to  be  reimbursed  the  sura 
paid.  Primarily  the  sheriff  is  liable,  as  also  are  the  parties  who  received 
the  benefit,  and  at  whose  instance  the  sale  was  made;  but  in  order  to  avoid 
multiplicity  and  circuity  of  action  in  the  Court  of  Law,  this  Court  will  order 
the  lands  to  be  sold  to  reimburse  the  purchaser,  and  in  relief  of  the  mort- 
gage and  judgment  creditor.     Stoney  et  als.  v.  Shultz  et  als 495 

3.  At  common  law  the   legal  estate  vests  in  the  mortgagee  ;    after   condition 

broken  he  is  entitled  to  the  possession  of  the  land,  and  may  maintain  a 
possessory  action  against  any  one  in  possession  and  is  entitled  to  receive 
the  rents  from  the  tenants.  The  Act  of  1791  ( 1  Faust,  63)  has  made  no 
change  and  profits  in  this  respect,  where  the  mortgagor  is  out  of 
possession ;  the  proviso  of  the  Act  renders  it  wholly  inoperative  when  the 
mortgagor  is  out  of  possession ;  and  therefore  in  such  case  the  mortgagee 
still  has  a  right  to  receive  and  retain  the  rents,  having  given  notice  of  the 
mortgage  to  the  tenants  in  possession.     lb 497 

4.  In  ordering  a  sale  of  mortgaged  premises  which  had  been   sold  in   lots 

by  the  mortgagor  subsequent  to  the  mortgage,  to  several  purchasers  at 
different  periods,  the  Court  directed  the  sale  of  the  lots  in  the  order  in 
which  they  had  been  conveyed,  beginning  with  the  last,  and  proceeding 
according  to  the  order  of  the  dates,  to  the  first,     lb 500 

5.  The  mortgagee  is  only  entitled  to  the  land  and  the  rents  accruing  from  it  in 

the  condition  it  was  when  mortgaged  ;  and  where  the  mortgagor  had  sold 
the  land,  and  the  purchasers  had  improved,  and  thereby  increased  the 
rents,  the  Court  directed  the  rents  to  be  so  apportioned  that  the  mortgagee 

should  only  receive  the  ground  rents.     lb 501 

See  Assignment,  3.     Contract,  3. 

NOTICE. 

See   Mortgage,  1,     Debtor  and  Creditor,  3.     Equitable   Interest. 

Voluntary  Conveyance. 

OFFICIAL  BOND. 
See  Commissioner,  2,  3. 

ORDINARY. 

1.  In  order  that  the  parties  should  be  bound  by  the  decree  of  the  Ordinary  on 
matters  of  account,  it  should  appear  by  the  proceedings,  that  they  were 


INDEX.  357 

legally  before  him,  either  by  citation  duly  served,  or  appearance  by  con- 
sent, set  out  on  the  face  of  the  decree.     Miller  v.  Alexander, '2~ 

2.   Quere. — Can  the  Ordinary  appoint  an  administrator,  where  the  executor  liad 

made  probate  and  gone  without  the  State?     Ex  parte  Oalluchal, 100 

PAROL  EVIDENCE. 

See  Evidence. 

PARTIES. 

See  Pleading,  1.     Assignment,  1.     Fraud,  4. 

PARTITION. 

1,  The   defendants  being  in  possession  of  negroes  of  which   the  plaintiff  is 

entitled  to  partition,  and  having  employed  them  as  their  own,  and  some  of 
the  negroes  having  been  removed  out  of  the  State,  the  Court  ordered  the 
defendants  to  account  for  the  value  of  negroes,  by  the  appraisement,  with 
interest  thereon,  instead  of  the  negroes  themselves  and  their  hire.  Lyles 
V.  Lyles,  Adin'r,  et  ah 90 

2.  Application  for  partition  being  premature  it  was  refused,  but  the  bill  retained 

with  leave  to  apply  by  petition,  when  the  parties  respectively  become  en- 
titled to  receive  their  shares.     Cole  et  als.  v.  Crcxjon 322 

See  Distributive  Shares. 
PARTNERSHIP. 
1.  Judgment  creditors  of  a  co-partnership  may  be  compelled  by  the  purchasers 
of  the  individual  property  of  one  of  the  partners,  to  exhaust  the  partnersliip 
property  before  they  resort  to  the  property  purchased  by  them  ;  and  if  the 
creditors  release  the  partnership  property  from  the  lien  of  their  judgments, 
they  are  without  any  remedy  against  the  purchasers.  (06.  diet.)  Stoney 
et  als.  V.  Skultz  et  als 496 

PENALTY. 

See  Bonds. 

PER  CAPITA. 

See  Will,  7,  18. 

PERSONAL  PROPERTY. 
1.  Principles  applicable  to  a  bequest  for  life  of  chattels  consumable,  or  wearing 

out,  in  the  use.     Robertson  et  als.  v.  Collier  ajid  n-ife,  et  als 373 

See  Limitation  of  Estates,  1,  2.     Tenant  for  Life. 

PLEADING 

1.  On  a  bill  to  charge  a  specific  legacy  with  the  payment  of  an  annual  sum,  all 

the  parties  in  interest  should  be  before  the  Court ;  and  the  Court  may,  at 
any  stage  of  a  case,  direct  a  bill  to  be  amended  so  as  to  make  proper 
parties,  and  this  may  be  done  with  or  without  costs,  according  to  the 
discretion  of  the  Court.      Caheenw.  Gordon ;■■•      '"^^ 

2.  The  plaintiff  should  set  out  in  his  bill,  his  title,  and  the  grounds  on  which 

he  expects  to  recover,  and  the  proof  should  correspond  with  the  allegntions 
contained  in  it;  but  if  parties  go  to  trial,  on  general  statements,  contained 
in  a  bill  or  answer,  and  permit  proof  to  be  given  which  ought  to  have  been 
exhibited  on  the  record,  the  Court  is  bound  to  decree  on  the  cnse  thus 
made,  if  enough  appears  on  the  record  to  warrant  the  judgment,  which  the 
facts  proved,  authorize  the  Court  to  pronounce.  Clark  and  ici/e  v.  Saxon..  1 1 
See  Account,  1.     Practice. 

POSSESSION. 

See  Evidence,  1,     Lapse  of  time,  2. 

m 

POSSIBILITY  OF  REVERTER. 
See  Merger,  2. 


358  INDEX. 

PRACTICE. 

1.  The  effect  of  two  separate  bills  for  the  same  property  being  tried  together, 

and  decided  by  one  decree,  is  the  same  as  if  all  the  matters  contained  in 
both,  had  been  stated  in  one  ;  and  the  cases  may  be  consolidated.  Hinson 
and  wife  y.  rickett.     Myers,  Adin'r,  y.  Pickett 43 

2.  Under  the  Act  of  1791,  when  the  amount  claimed  does  not  exceed   £100, 

the  proceeding  may  be  b}'  petition  instead  of  bill,  whether  the  cause  be 
litigated  or  not.     Skillivg  v.  Jackson,  AdrnW, 185 

3.  Where  a  party  has  neglected  to  file  exceptions  to  the  Master's  report,  within 

time  prescribed  by  the  rule  of  Court,  he  will  not  afterwards  be  permitted 
to  file  them,  unless  he  shows  by  affidavit,  that  he  was  prevented  from  filing 
them  by  accident,  mistake  or  surprise.   Adm^ x  of  Fooie  y .  Van  Eanst,  Adrn'r.   185 
See  Pleading.    Defendants.    Commissioner,  1.     Partition,  2,    Injunc- 
tion.     Appeal,  6. 

PRINCIPAL  AND  AGENT. 

1.  One  who  was  authorized  by  power  of  attorney,  to  demand  and  receive  a 

legacy  for  his  principal  became  indebted  to  the  executor,  in  whose  hands 
the  legacy  was,  and  failed ;  afterwards,  by  letter  to  the  executor,  he 
acknowledged  that  he  was  indebted  to  him  a  balance  of  two  thousand  eight 
hundred  and  ninety-one  dollars,  and  promised  to  account  to  his  principal 
for  this  sum,  as  so  much  of  the  legacy ;  but  he  gave  no  discharge  to  the 
executor,  nor  did  he  receive  one  from  his  debt,  nor  was  there  any  agree- 
ment that  one  demand  should  go  in  payment  of  the  other : — Held,  that  this 
was  not  a  payment  by  the  executor,  which  would  discharge  him  for  that 
amount.      Benoist,  Adni'x,  v.  Poirier 221 

2.  It  seems,  that  even  if  there  had  been  an  agreement  between  the  executor  and 

the  attorney,  that  the  debt  due  from  the  latter  to  the  former,  should  be 
regarded  as  so  much  in  payment  of  the  legacy,  and  mutual  acquittances 
given,  it  would  not,  under  such  circumstances,  be  a  compliance  with  the 
power,  and  therefore  void.     lb 222 

3.  On  a  bill  against  an  agent  for  an  account,  his  books  are  not  admissible  to 

prove  the  sale  and  delivery  of  provisions  and  necessaries  to  the  principal. 

Poag,  Ex'or,   v.  Poag 287 

4*  Although  the  agent  in  such  case  may  be  considered  a  trustee,  and  his  trans- 
actions regarded  with  jealousy,  yet  he  will  be  entitled  to  credit  for  notes 
on  his  principal,  payable  to  himself  during  his  agency,  without  showing 
their  consideration,  unless  there  be  some  evidence  to  impugn  them.     lb....  287 

See  Commissions,  3. 

PURCHASER. 

See  Sheriff's  Sales,  2,  3.    Partnership.      Mortgage,  1,  2,  4,  5.   Vendor 

and  Purchaser. 

RECEIPT. 

1.  Where  there  is  something  certain  due,  and  there  is  a  doubt  whether  the 

creditor  may  not  be  entitled  to  something  more,  and  he  thinks  proper  to 
accept  what  is  certainly  due  and  give  a  receipt  in  full,  he  is  bound  by  it, 
notwithstanding  it  should  afterwards  turn  out  that  he  was  entitled  to 
more.      Chcsnut  and  wife,  et  ah.  v.  Strong,  Ux'or 127 

2.  A  receipt  is  ovAy  prima  facie  evidence  that  all  matters  were  then  accounted 

for,  and  finally  settled;  it  is  not  conclusive,  and  if  fraud  or  mistake  can  be 
shown,  relief  will  be  granted  against  it:  and  therefore,  where,  on  a  bill  to 
account,  the  defendant  produced  a  receipt  in  full,  if  the  plaintiff  can  show 
that  there  were  other  moneys  not  embraced  in  the  receipt,  and  not  then 
accounted  for,  he  may  do  so,  and  will  be  entitled  to  relief. — See  Benjamin 
V.  Sinclair,  1  Bailey,  175;  M'Dowell  &  Black  v.  Lemaiter,  2  M'C.  320. 
Pinchback  v.  i/'  Craven 30i 

RECEIVER. 
1.  A  receiver  will  be  appointed  where  the  executor  has  left  the  state.   Ex  parte 

Galluchet .' 160 


INDEX.  359 

RECORDING. 

1.  It   is  not  necessary  to  the  validity  of  recording,  that  tlie  probate  of  the 

■witness  should  be  endorsed  on  the  deed.  —  (per  Chancellor  De  Saussurc.) 
IliUeffas  and  icife  v.  Hartley 107 

2.  Where  a  feme  covert  joins  her  husband  in  a  conveyance,  and  renounces  her 

inheritance  according  to  the  act  of  1795,  the  renunciation  is  not  "complete 
and  legal  "  until  recorded  ;  and  if  it  has  not  been  recorded  within  the  time 

prescribed  by  the  Registry  Act  (1785),  it  is  absolutely  void,     lb HO 

See  Makriage  Settlement,  3.     Mortgage,  1. 
REIMBURSEMENT. 

1.  Conveyance  of  land  set  aside  as  fraudulent  against  creditors,  but  the  grantee 

intending  no  actual  fraud,  having  paid  the  consideration  and  applied  it  to 
the  payment  of  the  grantor's  debts,  and  afterwards  devised  the  land,  the 
Court  ordered  the  money  actually  paid  to  be  refunded  to  the  devisee,  and 
the  deed  to  stand  as  a  security  for  it.     Brown  ct  als.  v.  McDonald 305 

2.  Where  there  was  a  purchase  of  land  at  sherilf' s  sale,  and  the  money  paid 

and  applied  to  a  mortgage  and  judgment,  and  the  sale  was  void  for  want 
of  authority  on  the  part  of  the  sheriff  to  sell;  tlie  purchaser  is  entitled  to 
be  reimbursed  the  sum  paid,  and  the  Court  ordered  the  land  to  be  sold,  to 
reimburse    the    purchaser,   and  in  relief  of  the  mortgage    and  judgment 

creditor.     Sloney  et  als.  v.  Shultz  et  als -195 

See  Sheriff's  Sales,  2. 
RENTS  AND  PROFITS. 
1.  The  value  of  rent   can  only  be  ascertained  by  the  opinion  of  witnesses 
acquainted  with  the  lands;    and  where  the  Commissioner  had  fixed  the 
value  of  rent,  and  adopted  ten  per  cent,  per  annum,  as  a  scale  of  deprecia- 
tion, so  that  at  the  expiration  of  ten  years  no  rent  was  charged,  the  Court 
held  it  error,  and  ordered  the  report  back.     Lyles  v.  Lylcs,  AdmW,  et  ah..     8-1 
See  Joint-tenants  and  Tenants  in  Common.    Voluntary  Conveyance,  3. 
Mortgage,  3,  5. 
RENUNCIATION  OF  WIFE'S  INHERITANCE. 
See  Recording,  2. 
RESIDUARY  BEQUEST. 
See  Will,  4,  5,  12. 
REVERSION. 
See  Tenant  for  Life. 
SALE  (ADMINISTRATOR'S). 
See  Executors  and  Administrators,  7.     Confirmation. 
SALE  BY  THE  COMMISSIONER. 
See  Trustee,  4. 
SECURITY  FOR  THE  FORTHCOMING  OF  TROrERTY. 
See  Tenant  for  Life,  1,  2,  3,  4.     Limitation  of  Estates,  5. 
SHERIFF'S  SALE. 

1.  A  tract  of  land  being  under  levy,  the  defendant  (in  this  case)  had  agreed 

with  the  debtor  and  creditor  to  purchase  it  at  a  fair  price,  and  the  sheriff 
was  instructed  not  to  sell ;  and  in  consequence  of  tlii.s  agreement  neither 
creditor  nor  debtor  attended  on  sale  day,  and  the  land  was  sold  by  the 
sheriff  and  purchased  by  this  defendant  at  an  undervalue,  whereby  the 
debt  was  endangered:  on  a  bill  tiled  for  this  purpose,  the  sale  was  set  asnle. 
Lovdand  and  Wilson  v.  Mansell  and  Reid •" 

2.  A  sheriff's  sale  of  a  tract  of  land  to  one  who  purchased  at  the  instance  of  the 

debtor  in  the  execution,  and  conveyed  to  a  trustee  for  the  beneht  of  the 
debtor's  family,  under  the  circumstances  set  aside;  but  tiic  mother  of  the 
debtor's  wife  having  advanced  money  towards  the  purchase,  and  which 


360  INDEX. 

■went  to  the  payment  of  his  debts,  and  the  trustee  having  afterwards  paid 
out  money  in  discharge  of  a  mortgage,  to  which  the  land  was  subject  when 
sold,  and  neither  of  them  having  been  accessory  to  the  fraud,  the  Court 
held  that  the  money  thus  advanced  should  be  refunded,  and  that  the  land 
should  stand  as  security  for  the  payment.     iPMcekin  v.  Edmonds  and  wife, 

e.t  ah 292 

S.  The  general  rule  that  there  is  no  implied  warranty  in  sales  made  by  a  sheriff 

or  other  ministerial  otficer,  applies  exclusively  to  the  quality  and  property 

of  the  thing  sold  ;  it  does  not  apply  to  cases  where  the  sheriff  or  other 

ofBcer  assumes  an  authority  where  none  is  given  by  law.     In  every  case 

there  is  an  implied  covenant  on  the  part  of  the  sheriff,  that  he  has  authority 

to  sell  ;   and   the  recital  in  his  deed  of  his  authority,  as  effectually  estops 

Lim,  as  if  it  had  been  an  express  covenant.     Stoney  el  ah.  v.  Shultz  ct  ah..  493 

See  Assignment,  3. 

SPECIFIC  PERFORMANCE. 

See  Contract,  1,  2.     Agueement,  1. 

SUBROGATION— SUBSTITUTION. 

Where  allowed.     Ilinson  and  Wife  v.  Pic?cett.     Mi/ers,  AdrnW,  v.  Pickett 43-46 

Perkins  et  ah.  v.  Kershaw  et  ah.  851 

See  Surety,  2.     Reimbursement,  2. 

SURETY. 

1.  Where  the    payee  of  a  promissory  note,   by   contract  with    the  principal 

maker  extends  the  time  of  payment,  without  the  consent  of  the  surety,  the 
latter  is  discharged,  and  he  may  avail  himself  of  this  defence,  in  a  Court 
of  Law  ;  but  having  failed  to  do  so,  he  cannot  afterwards  obtain  relief  in 
E-juity.     Maxivell  y.  Connor 15 

2.  A  surety  paying  the  debt  of  his  principal,  may  be  remitted  to  all  the  rights 

of  the  creditor;  and  where  separate  judgments  were  obtained  against  the 
jirincipal  and  surety  for  the  same  debt,  and  the  latter  paid  the  judgment 
against  himself,  and  thereupon  the  sheriff  entered  satisfaction  on  both 
executions,  the  surety  will  be  allowed  to  vacate  the  entry  of  satisfaction 
on  the  judgment  against  the  principal,  and  to  set  it  up  as  a  lien  on  his 

estate.     Perkins  et  ah.  v.  Kershaw  et  ah 351 

See  Commissioner,  2,  3.     Assignment,  2. 

TENANT  FOR  LIFE. 

1.  Where  the  defendant  is  in  possession  of  personal  property  as  tenant  per  outer 

vie.  Equity  will  entertain  jurisdiction  at  the  instance  of  the  remainder-men, 
in  order  to  compel  him  to  give  security  for  the  forthcoming  of  the  property, 
if  there  has  been  any  attempt  to  remove  it;  and  the  defendant  cannot,  in 
such  case,  defeat  the  jurisdiction  of  the  Court,  by  setting  up  a  paramount 
legal  title  in  one  of  the  plaintiffs.  Ilinson  and  ivife  v.  Pickett — Myers, 
Ad/n'r.  v.  Pickett 44 

2.  On  a  bill  filed  to  compel  defendants  to  give  security  for  the  forthcoming  of 

property,  to  entitle  the  plaintiffs  to  a  decree,  it  is  not  necessary  that  a  case 
of  trust  created  by  express  contract  should  be  made  out.  Clark  and  wife 
V.  Saxon 73 

3.  Where  a  feme  covert  has  a  separate  estate  for  life  in  some,  and  undivided 

interest  as  tenant  in  common,  in  others,  of  the  slaves  in  question,  she  is  a 
trustee  for  those  claiming  in  reversion  and  as  co-tenants;  and  on  a  bill 
filed  to  compel  her  and  her  husband  to  give  security  for  the  forthcoming  of 
the  property,  her  coverture  cannot  be  pleaded  in  bar  of  the  trust,  nor  in 
abatement  of  the  suit;  nor  can  her  husband  avail  himself  of  the  statute  of 
limitations;  but  on  proof  that  they  intended  to  remove  the  slaves,  they 
were  ordered  to  give  security  not  to  remove  them  beyond  the  State.     lb.     74 

4.  It  has  been  the  constant  practice  of  the  Court  of  Equity,  to  require  security 

for  the  forthcoming  of  property  oa  the  termination  of  a  life  estate,  or  on 
any  other  event  when  the  rights  of  remaiuder-men  or  reversioners  spring 


INDEX.  361 

up,  •whenever  those  rights  appear  to  be  in  danger.       Cordcs  v.  Ardrian 

ei  ah 157 

5.  Principles  applicable  to  a  bequest  for  life  of  chattels  consumable,  or  wearing 

out,  in  the  use.      Robertson  ci  ah.  v.  Collier  and  wife  et  ah «....  373 

6.  Where    an    estate,   consisting  of  a  plantation    and    slaves,   stock,   farming 

utensils,  &c  ,  are  devised  to  one  for  life  (or  widowhood)  the  perishable 
articles  cannot  be  considered  as  belonging  absolutely  to  the  tenant  fur  life. 
The  tenant  for  life  will  be  considered  as  a  trustee  for  the  remainder-man, 
and  must  preserve  the  estate,  with  all   its   appurtenances,    in   the  same 

situation  in  which  it  was  received.     lb 374 

See  Limitation  of  Estates,  5. 

TRUST. 

See  Tenant  for  Life,  2. 

TRUSTEE. 

1.  A.  trustee  who  has  received  money,  must  discharge  himself  by  proof.     Terry, 

Adm'r,  v.  Hopkins  et  ah 9 

2.  Trustees  of  estates  shall  not  exceed  in  expenditure  the  amount  of  the  income, 

so  as  to  charge  the  capital ;  in  some  cases  of  necessity  this  has  been 
sanctioned  by  the  Court:  but  where  the  defendant  had  assumed  the 
management  of  a  testator's  estate  without  authority,  and  refused  to  qualify 
as  executor,  it  was  held  that  he  was  not  entitled  to  the  privileges  of  a 
trustee.  The  Court  would  not  require  him  to  give  security,  but  ordered 
him  to  account  annually  before  the  Commissioner,  until  he  qualified,  and 
that  no  balance  should  be  struck  in  his  favor,  nor  allowance  made  for  his 
personal  services.     Ilaiyoodv.  Wells 60 

3.  Whei-e  a  husband  in  pursuance  of  a  marriage  contract,  purchased  lands  and 

had  the  titles  made  to  the  trustees  under  the  settlement,  but  the  deeds  were 
absolute,  not  declaring  any  trusts,  and  the  husband  afterwards  sold  the 
lauds,  and  the  trustees  at  his  request,  conveyed  to  his  purchasers,  and  he 
received  and  squandered  the  proceeds:  it  was  held,  that  the  trustees  were 
liable,  although  they  did  no  other  act  showing  their  acceptance  of  the  trust. 
Kinloch  et  als.  \.  r  On  et  ah 191 

4.  Where  a  trustee  purchases  at  his  own  sale,  it  is  at  the  option  of  the  parties 

interested  without  any  inquiry  into  the  cii'cumstances,  to  have  a  re-sale,  or 
to  hold  the  trustee  to  his  purchase.  If  they  elect  to  have  a  re-sale,  the 
course  is  to  put  the  property  up  at  the  price  bid  by  the  trustee — if  more  is 
bid  at  the  second  sale  the  property  is  re-sold — if  not,  the  trustee  is  held  to 
his  purchase:  And  such  a  sale  is  not  less  the  sale  of  the  trustee,  because 
made  under  the  order  of  the  Court  and  superintendence  of  the  Commis- 
sioner, when  procured  at  his  instance.     Ez  parte  Wiggens 354 

5.  This  Court  views  contracts  between  trustees  and  their  cestui  que  trusts  in 

relation  to  the  trust  property  with  great  suspicion.     Farr  v.  Farr,  Ex.' or...  390 
See  Hire,  1,  2,     Commissions,  1,  3.     Tenant  for  life,  3. 

TRUST  ESTATE. 

1.  No  mode  of  investment  having  been  prescribed  by  the  will,  the  Court  ordered 

a  residuary  trust  fund  to  be  invested  in  land  and  negroes,  subject  to  the 
trusts  and  limitations  of  the  will.     Ex  parte   Calmes, _■ 1^"^ 

2.  How  far  and  under  what  circumstances,  trust  estates  will  be  held  liable  for 

debts  contracted  for  their  benefit,  or  in  furtherance  of  the  objects  of  the  ^ 
trust.     Magwood  and  Patterson  V.  Johnston  et  als • ~"^ 

3.  The  equity  of  a  creditor  to  render  a  trust  estate  liable  for  his  debt,  is  that 

he  has  advanced  his  money,  or  given  his  credit  to  effect  the  objects  of  the 
trust,  and  in  charging  trust  estates  with  such  debts,  every  estate  must  bear 
its  own  burthens.     lb ...., ; ;••   ■**"^ 

4.  To  expend  money  for  the  benefit  of  a  trust  estate,  means  either  adding  to  its  ^^ 

value  or  defraying  charges  to  which  it  would  be  liable,     lb -"4 

6.  The  wife's  separate  estate,  in  general,  is  not  liable  for  the  expenses  of  herself 

and   family— the  husband,  if  he  be  of  ability,  is  bound  to   support  hia 


362  INDEX. 

family;  and  if  he  contract  debts  for  the  support  of  his  w'ife  and  children, 
and  the  credit  is  g;iven  to  him,  neither  the  separate  estate  of  the  wife,  nor 
the  remainder  to  the  children,  is  liable  for  such  debts,  altliough  the  husband 
sh(^uld  prove  insolvent.     Ih 234 

6.  Althougli  the  wife  cannot  by  her  own  mere  act,  charge  her  separate  estate, 

if  she  is  under  the  necessity  of  supporting  herself  and  family  on  the  ere  lit 
of  her  estate,  she  may  do  so,  but  the  Court,  before  making  her  estate  liable, 
will  see  that  such  necessity  existed,  and  that  the  advances  of  money  or 
goods  were  proper ;  and  with  respect  to  such  an  account,  the  dealings 
should  appear  to  have  been  bona  fide  with  the  wife,  and  not  with  the  hus- 
band :  Therefore  where,  by  marriage  settlement,  the  fortune  of  the  wife  was 
settled  to  her  separate  use  during  life,  remainder  to  the  issue  of  the 
marriage :  and  the  husband's  estate  was  settled  on  himself  during  life, 
remainder  also  to  the  issue,  subject  to  an  annuity  to  the  wife  ;  and  the 
hiisband,  during  coverture,  having  charge  of  the  trust  estates,  contracted 
debts  for  necessaries  for  his'family,  and  for  supplies  to  the  plantations,  and 
died  insolvent :  Held,  that  neither  the  life  estate  of  the  wife  nor  the  re- 
mainder of  the  children,  was  liable  for  such  debts.  But  if  the  husband  act 
as  his  wife's  agent,  in  furnishing  necessaries  for  her  and  the  family,  and  in 
procuring  supplies  for  her  separate  estate,  and  if  such  an  account  was 
necessary  and  proper,  her  separate  estate  will  be  charged  with  it.     lb 236 

7.  Where  a  trustee  has  been  legally  compelled  to  pay  money  as  the  surety  of 

his  cpstui  que  trust ;  in  Equity  the  trust  estate  will  be  charged  with  the 

amount  paid.     Perkins  et  als.  \.  Kershaw  et  als 349 

See  Trustee,  2,  8. 

VENDOR  AND  PURCHASER. 
1.  Where  one  who  was  a  distributee  of  an  estate  conveyed  certain  slaves  of  his 
ancestor  by  bill  of  sale,  in  which  no  words  are  used  descriptive  of  his 
distributive  share,  and  before  administration,  when  he  had  no  legal 
interest;  the  distributive  share  does  not  pass  to  the  vendee;  but  if  the 
vendee  has  advanced  money,  in  satisfaction  of  a  debt  due  by  the  intestate, 
he  may  be  subrogated  to  the  rights  of  the  creditor,  whose  debt  he  has  paid. 
Ilinson  a?id  wife  v.  Pickett.     3Iyers,  AdniW,  v.  Pickett 45 

VOLUNTARY  CONVEYANCE. 

1.  The  right  of  a  creditor  to  avoid  a  voluntary  conveyance,  arises  from  the  fact 

that  he  cannot  otherwise  be  paid;  and  if  a  creditor  comes  into  equity  to 
avoid  such  a  conveyance,  it  must  appear  that  he  had  no  other  means  of 
payment:  certain  creditors  (the  phiintifiFs),  with  a  knowledge  of  such 
conveyance,  stood  by  and  permitted  other  and  junior  creditors  to  exhaust 
the  debtor's  property,  and  meanwhile  the  donee  had  possession,  and  made 
permanent  improvements  on  the  land ;  on  a  bill  filed  to  set  aside  the  con- 
veyance : — Held,  that  they  were  not  entitled  to  relief.  Eigleberger  et  als.  v. 
Kibler 119 

2.  A  subsequent  creditor  with  notice,  is  not  entitled  to  have  a  voluntary  con- 

veyance set  aside.     lb 121 

3.  A  deed  or  marriage  settlement  which  is  good  between  the  parties,  but  void 

as  to  creditors  for  the  want  of  a  schedule,  or  for  not  being  recorded,  is 
nevertheless  valid  as  to  creditors  until  they  choose  to  avoid  it  by  seizing 
the  property,  and  the  party  in  possession  under  it  will  not  be  bound  to 
account  for  rents  and  profits  during  the  time  such  deed  was  regarded  as 

valid.     Frij}p  V.  Talbird 143 

See  Infant. 
WILL. 

1.  The  terra  ^  lend'  in  a  bequest  will  be  considered  synonymous  with,  ^give" 

unless  it  is  manifest  that  the  testator  did  not  intend  the  legal  estate  to  pass 

to  the  legatee.     Ilinson  and  wife  y .  Pick'^tt — Myers,  AdinW,  v.  Pickett 38 

2.  The  testator,  by  his  will,  bequeathed  certain  negroes  to  his  helpless  daughter, 

B.  and  then  declares  "I  allow  my  daughter  M.,  to  take  care  of  the  said  B., 


INDEX.  363 

and  at  her  decease  I  allow  my  said  daughter  M.,  to  have  the  said  negroes, 
to  her  and  her  heirs  and  assigns,  forever:"  Held,  that  this  is  a  bequest  on 
condition  that  the  direction  be  complied  with,  and  that  if  M.  should  not 
"take  care  of  B."  the  remainder  would  not  vest,  and  that  the  negroes 
might  be  sold  for  the  support  of  B.     Cabecn\.  Gordon  ct  als 55 

3.  The  word  ''allow"  in  a  will,  may  be  construed  as  synonymous  with  "direct" 

or  "give,"  so  as  to  effectuate  the  intention  of  the  testator.     lb 5G 

4.  The  general  rule  is,  that  a  lapsed  legacy  of  chattels  passes  under  a  general 

residuary  bequest,  but  the  rule  does  not  apply  where  the  residuary  bequest 
is  of  a  particular  fund  or  description  of  property,  or  other  certain  resid- 
uum.    Peay  and  Pichett  v.  Barber, 97 

5.  Testator,  by   his   will,   bequeathed  to    his   wife    one-half  of  his   negroes, 

household  furniture,  stock,  money,  debts,  &c. ;  and  to  his  sister's  children 
(by  name)  "all  the  rest  of  my  negroes  and  their  increase,"  and  adds  that 
"all  the  rest  of  my  property  not  disposed  of,  I  wish  to  be  sold  at  public  sale," 
and  the  proceeds  to  be  divided  among  the  said  children,  and  "  the  rest  of 
my  money  on  hand  and  owing,  I  wish  to  be  disposed  of  in  the  same  man- 
ner," &c. ;  the  testator's  wife  died  in  his  lifetime,  so  that  the  legacy  to  her 
lapsed: — Held,  that  the  words  "all  the  rest  of  my  property,"  must  be 
understood  as  exclusive  of  the  negroes,  money  and  debts  due;  and  as  cover- 
ing only  the  household  furniture  stock,  movables  and  chattels  of  that  class 
of  property ;  that  nothing  else  of  the  lapsed  legacy  but  property  of  this 
description  passed  under  the  residuary  bequest,  and  that  the  negroes, 

money  and  debts  due,  descended  to  the  heii'S  general.     lb 98 

A  residuary  bequest  to  be  paid  when  the  legatee  arrives  at  twenty-one,  gives 
a  present  vested  legacy,  and  the  legatee  will  be  entitled  to  the  profits  or 
interests  (if  any  accrue)  in  the  interval  between  the  testator's  death  and 
her  attaining  twenty-one.      Chesnut  and  ivife  et  ah.  v.  Strong,  Ex'or 123 

7.  Where  a  testator,  by  his  will,  devised,  viz. :   "all  the  residue  and  remainder 

of  my  real  and  personal  estate,  wheresoever  situated,  to  be  equally  divided 
in  the  following  proportions,  that  is  to  say,  two  shares  to  my  deceased  sons' 
(William  and  James)  children,  to  be  equally  divided  among  them:"  it  was 
held,  that  all  the  children  of  William  and  James  took  equally  per  capita. 
Ex  parte  Leilh,  Ex'or, 153 

8.  The  testator  by  his  will,  disposed  of  his  whole  estate,  and  amongst  other 

things,  bequeathed  certain  negroes  to  his  son,  W.  H.  D.  during  life,  re- 
mainder over;  and  by  another  clause,  directs  "his  estate  to  be  kept 
together  until  his  debts  are  paid  ;  it  was  held,  that  the  testator  meant  no 
more  than  that  the  absolute  right  of  the  legatees  should  not  vest  until  his 
debts  were  paid;  that  the  restrictive  clause  applied  only  to  the  mass  of  the 
estate,  and  not  to  the  specific  legacy  ;  and  (the  tenant  for  life  being  dead,) 
that  the  legatee  in  remainder  was  entitled  to  the  immediate  possession  of 
the  negroes,  although  the  debts  were  not  paid,  and  could  retain  them  until 
the  rest  of  the  estate  should  prove  insufficient  to  pay  the  debts.  Drayton 
V.  Grimke,  AdrnW "'"^ 

9.  A  bequest  of  "Driver  Dick  and  his  family,  to  wit,  his  wife  and  children,"  ^^^^ 

includes  only  the  wife  then  living,  and  the  issue  of  their  cohabitation.^    lb.  --< 

10.  Where  a  contingent  legacy  in  remainder  was  given  on  the  legatee's  attaining 

twenty-one,  and  assuming  the  surname  of  the  testator,  and  there  was 
nothing  in  the  will  showing  an  intention  on  the  part  of  the  testator  to 
pi'ovide  a  fund  for  maintenance  and  education:— //eW,  that  the  legatee  in 
remainder  was  not  entitled  to  the  intermediate  profits  of  the  legacy,  from 
the  death  of  the  tenant  for  life  until  the  estate  vested  in  him.     lb....... 2L7 

11.  A  witness  may  attest  the  execution  of  a  will,  by  signing  the  initials  of  his  or  ^ 

her  name.      Adams  et  als.  y.  Chaplin  et  ah ••"•   ~" 

12.  Where  the  residuary  clause  of  a  will  contains  the  following  words—"  I  do 

hereby  leave  all  the  rest  of  my  property  that  is  not  above  mentioned,  such 
as  horses,  cattle,  hogs,  sheep,  geese,  beds,  crop  and  other  articles,  too 
tedious  to  mention,"  &c. ;  Held,  that  money  on  hand  at  the  testator's  death, 
passed  under  it.     Stuckey  v.  Stuckey •■••••  """^ 

13.  General  rule  that  in  a  bequest  to  the  children  of  A.  and  B.,  or  to  A.  and  the 


364  INDEX. 

children  of  B.,  they  take  per  capita;  but  a  bequest  to  an  ascertained  indi- 
vidual, and  to  a  class  of  unascertained  individuals  to  be  ascertained  at  any 
future  time,  vests  a  present  interest  of  one-half  in  the  individual  ascer- 
tained, and  the  other  half  vests  in  the  class  collectively,  -when  they  are 
ascertained.     Cole  et  ah.  v.  Crryon 319 

14.  WhA-e  a  bequest  is  to  children  at  the  death  of  a  tenant  for  life,  those  -who 

then  answer  the  description  of  children  will  take.     lb 323 

15.  Testator  by  his  will,  devised  his  estate  to  his  wife,  during  widowhood,  and 

then  adds,  "which  said  property  I  wish  and  devise,  at  the  marriage  or 
death  of  my  wife,  to  be  equally  divided  amongst  my  children  as  above 
named;"  G.,  one  of  the  testator's  sons  there  named,  survived  him,  but  died 
before  the  widow: — Held,  that  this  was  a  vested  remainder  in  G.,  and  his 
representatives  are  entitled  to  his  share.  Bankhead,  AdmW,  v.  Carlisle, 
AdrrCr 358 

16.  Where  there  are  two  inconsistent  bequests  of  the  same  property  in  the  same 

will,  the  second  revokes  the  first:  and  where  the  testator,  by  one  clause  of 
his  will  bequeathed  a  slave  to  his  son,  remainder  to  his  issue,  and  failing 
in  issue,  remainder  over;  and  by  a  subsequent  clause  bequeathed  the  same 
slave  to  his  daughter,  with  like  limitations: — Held,  that  the  clauses  were 
inconsistent,  and  the  last  revoking  the  first,  that  the  daughter  was  entitled 

to  the  legacy.     Frasery.  Boone  and  wife 367 

See  Limitation  of  Estates,  1,  2,  3,  4,   6,  7,  8,  9.      Trust  Estate,  1. 
Evidence,   4.      Assets,    2.      Annuity,    1.      Personal 
Property,  1.     Tenant  for  Life,  6. 

WITNESS. 

1,  An  executrix  who  has  no  interest,  is  a  competent  witness  to  prove  a  debt, 

where  it  is  properly  before  a  Court  of  Equity ;  but  if  the  debt  is  recoverable 
in  an  action  at  law,  in  which  she  must  be  the  plaintifiF,  this  Court  will  not 
permit  her  to  be  examined,  but  will  send  the  parties  to  a  Court  of  Law  to 
establish  the  debt.     Newman  and  wife  v.  Wilhourne,  Ex'or,  et  als 13 

2.  Where  a  wife,  before  marriage,  had  administered  on  an  estate  and  done 

certain  acts  amounting  to  devastavits,  the  moneys  arising  from  which  on 
her  marriage  went  into  the  hands  of  her  husband;  after  the  decease  of  the 
husband  on  a  bill  filed  against  her,  and  the  administrators  of  her  husband 
for  an  account  of  the  funds  so  received,  it  was  held,  that  she  was  a  com- 
petent witness  on  being  released  from  all  liability  to  her  intestate's  estate; 
and  perhaps  even  without  such  release.    Capehart  and  wife  et  als.  v.  Adm'rs 

of  Huey, 407 

See  Evidence.     Will,  11. 


REPORTS 


CASES  IN  CHANCERY, 


ARGUED  AND   DETERMINED 


COURT  OF  APPEALS, 


SOUTH    CAROLINA, 


FROM  MARCH,  1834,  TO  MAY,  1837,  BOTH  INCLUSIVE. 


BY  W.  R.HILL. 


VOLUME  II. 


CHARLESTON,    S.   C. 
McCARTER    &    Co.,  No.  116   MEETING   STREET. 

1858. 


JUDGES  OF  THE  COURTS  OF  APPEAL,  AND  CHANCELLORS, 

DURING    THE    TIME    OF    THIS   VOLUME. 


JUDGES  OF  THE  COURT  OP  APPEALS,   BEFORE  DEC,  1835. 

Hon.  DAVID  JOHNSON,  President. 
Hon.  J,  B.  O'NEALL.  ]  Hon.  WILLIAM  HARPER. 

CHANCELLORS,  BEFORE  DECEMBER,  1835. 

Hon.  henry  W.  DE  SAUSSURE.  |  Hon.  JOB  JOHNSTON. 


CHANCELLORS  AND  LAW  JUDGES, 

Constituting  a   Court  of  Ajipeals  in  Lmu  and  Equity,  from  Dec, 
1835  to  Dec,  1836. 

CHANCELLORS. 

Hon.  HENRY  W.  DE  SAUSSURE,  President. 
"      DAVID  JOHNSON, 
"      WILLIAM  HARPER, 
"     JOB  JOHNSTON. 

LAW   JUDGES. 

Hon.  J.  B.  O'NEALL, 
"     RICHARD  GANTT, 
"     J.  S.  RICHARDSON, 
"     JOSIAH  J.  EVANS, 
"     B.  J.  EARLE, 
"     A.  P.  BUTLER. 

CHANCELLORS, 

Constituting  the  Court  of  Appeals  in  Chancery,  after  Dec,  1836. 

Hon.  henry  AV.  DE  SAUSSURE,  President. 
"      DAVID  JOHNSON, 
"     WILLIAM  HARPER, 
"     JOB  JOHNSTON. 


TABLE    OF    CASES 

REPORTED    IN    THIS    VOLUME. 


[The  folios  in  this  Table  refer  to  those  marked  with  an  asterisk,  *  ] 


Adger,  Bank  v 262 

Allen,     Ex'or    of,    v.     Runiph    and 

others  1 

Allstons  V.  The  Bank 285 

Angel,  ex'or,  Sherman  v 26 

B 

Baceler  y   Farrow Ill 

Bank  V.   Adger 262 

Bank,  Allstons  y 235 

Bank  V.  Trapier  and  others 25 

Banks  v.  Brown  and  others 568 

Barelli,  Messervey  and  others  v 567 

Barksdale,  Bona  v 184 

Barksdale,  Edwards  « 184 

Barksdale,  Edwards  11 416 

Barnwell  v.  Barnwell,  ex'or 228 

Barnwell  and  others  v.  Porteus  and 

others 219 

Bell  «.  Coiel 108 

Bethea,  Ridgell  y 365 

Blacky.  Hair  &  Black 622 

Blake  and  Wife,  Jones  &  Briggs  v...  629 

Bona  y.  Barksdale 184 

Bona  y.  Davant 528 

Boykin  and  Wife  v.  Ciples  and  Wife.  200 

Britton  and  Wife  v.  Johnson 430 

Brown  and  others,  Banks  v 558 

Brown,  ex'or,  Fable  y 378 

Brown  and  Wife  v.  Lindsay,  adm'r..  542 

Brown,  M'MuUin,  adm'r,  v 457 

Brununet,  M'lMeekin  y 638 

Brunson     and     Wife     v.     Hunter's 

adm'r.  and  heirs 483 

Bryan,  Fryer  and  Wife  v 56 

Bryan  y.  Mulligan,  ex'or 361 

Bryson,  adm'r,  v.  Nickols  and  others.  113 


Caldwell,  adm'r,  v.  Giles 548 

Champion  and  others,  Chesnut  v 72 

Chesnut  v.  Champion  and  others 72 

Chesnut  and  Wife  v.  Strong,  ex'or..  146 
Cheves,  ex'or,  v.  Dallas  and  others..  299 
Chewning  y.  Singleton 371 


Ciples  and  Wife,  Boykin  and  Wife  v.  200 

Clarke,    King  y 611 

Clarke,  Kinsler  y 617 

Coiel,  Bell   v 108 

Conner,  adm'r,   and  others  v.  John- 
son, adm'r,  and  others 41 

Cooper  y.  Adm'rs  of  Held 549 

Crispin  \.  Taylor,  (note) 434 

D 

Dallas  and  others,  Cheves,  ex'or,  v.  299 

Davant,  Bona  y 628 

Davidson,    surv'g     ex'or,     v.     Huff 

adm'rs,  and  others  140 

Davis  y.  Davis,  adm'r 377 

Davis  and  others.  Gist  v 335 

Deas  and  Wife  v.  Horry  and  others.  244 

De  Witt,  Harley  and  Wife  v 367 

Douglass  and  others,  Isiolon  y ,  443 

Dubose    and   others,    Muklrow  and 

Bruce  v 375 

E 

Edgerton  and  others   v.    Muse  and 

Wife 51 

Edwards  y.  Barksdale 184 

Edwards  D.   Barksdale 416 

Ep.  Church  af  IMacon  v.  Wiley 684 

Esswein  v.  Seigling,  ex'or 600 

Ax  parte  Heard 64 

Ex  parte  Martin 71 

Ex  parte  Palmer 215 

Ex  parte  lihW^Y,  Com'r 378 

F 

Fable  v.   Brown,  ex'or 378 

Farrow,  Backler  v HI 

Fleming  and  others,  Peay,  adm'r,  v.     97 

Fogg  and  Wife  y.  Middleton 691 

Foreman,  adm'r,  Stalling?  and  Wife  y  491 

Frazer,  adm'r,  Lester,  iidm'x,  v 529 

Frazier  and  others  r.  Frazier's  ex'rs.  304 
Freer  and  others,  Wilson  and  Wife  i;.  650 
Fryer  and  Wife  y.   Bryan 66 

G 
Giles,  Caldwell,  adm'r,  v 548 


TABLE   OF   CASES. 


Gist  r.  Pressley  and  others 318 

Gist  V.  Davis  and  otliets 335 

Gist,  adm'r,  Robinson  and  others  v.,  4G7 

Givens,  Gray  v 511 

Glover  and  others,  Horry  and  Tra- 

pier,  trustees,  v 515 

Gordon,  adm'r,  v.  Stevens 46 

Gordon,  adm'r,  Sarter  and  Wife  and 

others  v 121 

Gordon,  adm'r,  v.  Stevens 429 

Gray,  ex'ors,  of,  v.  Kumph 6 

Gray  r.  Givens 511 

Gray,  adm'r,   and  heirs  of,   Ward- 
law  V 644 

Guess  and  others,  Matheney  v 03 

H 

Hair  and  Black,  Black  v 022 

Hamlin,  Kinloch,  ex'or,  v lU 

Hargroves  and  Wife  v.   Meray  and 

Wife 222 

Harley  and  Wife  v.  De  Witt 807 

Heard,  Ec  parte  54 

Heath  t'.  Heath  and  others 100 

Hinson,  adm'r,  v.  Pickett 351 

Holmes,  Parker  v 95 

Horry  and  others,  Deas  and  Wife  v..  244 
Horry  &Trapier,  trustees,  v.  Glovers 

and  others 515 

Hunt,  Jordan  u 145 

Hunter's  adm'rs,  and  heirs,  Brunson 

and  Wife  v 483 

I 

Inabnit,  Jackson  and  others,  v 411 

J 

Jackson  and  others  v.  Inabnit 411 

Jacobs,  Perryclear  w 5U4 

Jenkins,  ex'trix,  and  another,  Monk, 

adm'r,   v 9 

Johnson,  adm'r,  and  others,  Conner 

adm'r,  and  others,  v 41 

Johnson,    Adm'r,    of,    v.    Ex'ors  of 

Johnson 277 

Johnson,  Britton  and  Wife  v 430 

Johnson  and  others.  King  v 024 

Jones  and  Briggs  v.  Blake  and  Wife.  029 
Jordan  r.   Hunt 145 

K 

Keckley's  adm'r,  v.  Keckley's   ex'or  250 

King  u.  Clarke Oil 

King   and    others   v.    Johnson    and 

others 624 

Kinloch,  es'or,  w    Hamlin 19 

Kinsler  «.  Clarke 017 

L 

Leith,  ex'or,  Patterson  v 15 

Lester,  adm'x,  v.  Frazer,  adm'r 529 

Lever  t;.  Lever 158 


Lindsay,  adm'r.  Brown  and  Wife  v.  542 
Longworth,  Thackum  and  Wife  and 
others  v 207 

M 

^lartin,    Bx  parte 71 

Massey  i\  Massey  and  others 492 

Massey  r.  ^I'llwain  and  others 421 

Matheney  v.  Guess  and  others 03 

May  and  others.  Walker,  adm'r,  v...  22 
Meray    and    Wife,    Hargroves     and 

Wife  V 222 

IVIesservey  and  others  t>.  Barelli 507 

M'Cartnoy  &  Gordon  v.  Pogson  and 

Wife 180 

M'llwain  and  others,  Massey  v 421 

JM'Mui'in,  adm'r,  y.  Brown 457 

M'Meekin  v.  Brummet 038 

Middleton,  Fogg  and  Wife  v 591 

Miller,  Com'r,  Ex  parte  378 

Monk,  adm'r,    v.    Jenkins,    ex'trix, 

and  another 9 

IMorse,  Sumter,  adm'r,  v 87 

Muldrow  and  Bruce  v.  Dubose  and 

others 375 

Mulligan,  ex'or,  Bryan  v 361 

Murray  and    Wife,   Thompson    and 

Wife  V 204 

Muse  and  Wife,  Edgerton  and  others 

V 51 

Myers,  adm'r,  v    Pickett 351 

N 

Nash  V.  Savage  and  Nash,  ex'ors....  50 
Nickols  and  others,  Bryson,  adm'r,  v.  113 
Niolon  V.  Douglass  and  others 443 

P 

Palmer,  Ex  parte 215 

Parker,  ex'trix,  v.  Creditors  of  Par- 
ker       35 

Parker  y.  Holmes 95 

Patterson  v.  Leith,  ex'or 15 

Peay,  adm'r,  v.  Fleming  and  others.     97 

Perryclear  v.  Jacobs 504 

Pickett,  Hinson,  adm'r,  v 351 

Pickett,  Myers,  adm'r,  v 351 

Pickett  t'.  Pickett 470 

Pogson  and  Wife,  M'Cartney  &  Gor- 
don  V ; 180 

Porteus   and  others,   Barnwell  and 

others  v 219 

Pressley  and  others.  Gist  i; 318 

Price,    adni'rs  of,   Sinclair  ^  Kiddle 
V.   [note) 160 

R 

Reid,  adm'r  of.  Cooper  v 549 

Ridgell  V.  Bethea 365 

Robinson  and  others  v.  Gist,  adm'r.  467 

Rose  and  others,  Seabrook  v 553 


TABLE    OF    CASES. 


Ruff,   adm'r,  and   others,  Davidson, 

surv'ng  ex"or,  v 140 

Rumph  aud  others,  ex'or  of  Allen  v..  1 

Rumph,  Ex'ors  of  Gi"ay  v 6 

S 

Sarterand  Wife,  and  others,  v.  Gor- 
don, adra'r 121 

Savage  and  Nash,  ex'ors,  Nasli  v....  50 

Seabrook  v.  Rose  and  others 553 

Seibels  v.  Whatley  and  others ttOo 

Seigling,  ex'or,  Esswein  v COO 

Sherman  v.  Angel,  ex'or 'li'y 

.Sims  I".  Sims,  mlm'r 61 

Sinclair   and   Kiddle    v.    Adm'rs    of 

Price,  {note) IGO 

Singleton,  Chewning  v 371 

Smithy.   Smith 112 

Spann  &  Jennings  v.  Spann 152 

Stallings     and     Wife    v.    Foreman, 

adm'r 401 

Stevens,  Gordon,  adm'r,  v 46 

Stevens,  Gordon,  adm'r,  v 429 

Sumter,  adm'r,  v.  Morse 87 

T 

Taylor,  Crispin  y.  [7iote) 434 

Thackum  aud  Wife  v.  Longworth....  267 


Thompson  and  Wife  i'.   Murray  and 

Wife ' 204 

Thompson,  adm'r,  w.  Buckner 4'. 'j 

Toomer,  Union  Bank  r 1^7 

']' rapier  atid  others.  Bank  v 'Jo 

Thynes,  Adm'rs  of,  Wurtz  i' ]7l 

U 

Usher  and  other,  Welsh  v ]f.7 

Union  Bank  i;.   Toomer ::7 

V 
Valk  and    Wife  and  others,  Vcrnfm 

&  Co.  j; 257 

Vaughan,  guardian,  Ex'ors,  of  White 

V 329 

Vernon  &  Co.  v.  Valk  and  Wife  and 
others 257 

W 

Walker,  adm'r,  v.  May  and  otlier.=..  22 
Wardlaw   v.    Adm'rs   and   Heirs   of 

Gray 644 

Welsh  w.  Usher  and  others 107 

Whatley  and  others,  Seibels  v GOo 

White,  ex'rs  of,  v.  Vaughan,  guar'n  .  329 

Wiley,  Ep.  Church  of  Macon,  v 584 

Wilson  and  Wife  v.  Freer  and  others.  550 

Wurtz,  adm'rs  of,  v.  Thynes 171 


YoL.  I.— 24 


CASES    IN   CIIANCEIIY 

ARGUED  AND  DETERMINED  IN  THE 

COURT  OF  APPEALS  OF   SOUTH  CAROLIXA, 

CbarlEslon— parclj  anb  |ipnl,  1834. 


JUDGES  PRESENT. 


Hon.  DAVID  JOHNSOX,  Presiding  Judge. 
Hon.  J.  B.  O'NEALL.      ]      Hon.  WILLIAM  HARPER. 


Joel  W.  Green,  Ex'or  of  Benj.  J.  Allen,  v.  George  Rumpii  and 
others,  his  creditors. 

Contracts  in  consideration  of  marriage,  are  greatly  favored  in  Chancery,  and  as 
between  the  parties  themselves,  and  others  falling  within  the  express  objects  of 
the  contract,  they  will  be  enforced  according  to  the  obvious  intent,  however  in- 
formally or  irregularly  they  may  have  been  executed;  and  that,  although  they 
may  have  been  rendered  inoperative  at  law  by  the  intermarriage  of  the  parties. 
(«)  [*3] 

In  contemplation  of  marriage,  defendant  executed  a  deed,  in  which,  after  reciting 
the  intended  marriage,  he  conveyed,  directly  and  without  the  iutervention  of  a 
trustee,  to  his  intended  wife,  "all  the  estate  which  she  was  entitled  to  of  her  first 
liusbaud,"  consisting  of  slaves  and  other  personalty,  to  her,  "her  heirs,  adminis- 
trators and  assigns."  The  marriage  was  afterwards  solemnized,  and  defendant 
and  his  wife  went  into  possession  of  tlie  property.  After  the  death  of  the  wife 
without  issue  of  that  marriage,  on  a'  bill  filed  by  a  son  of  the  wife's  first  marriage, 
it  was  held,  that  in  Equity,  the  deed  will  be  regarded  as  a  marriage  settlement  in 
trust  for  the  wife  and  her  heirs  at  law,  that  the  marital  rights  of  the  husbjiiid 
■would  not  attach,  and  consequently  that  he  took  only  his  distributive  share  as 
heir  at  law.  [*4] 

The  Act  of  179:.',  1  Faust,  209,  requires  all  marriage  contracts,  &c.,  kc,  to  particu- 
larize the  property  intended  to  be  settled,  or  to  have  a  schedule  of  tlie  same 
annexed:  a  description  of  the  property  in  a  marriage  settlement  as  that  to  which 
the  wife  "is  entitled  under  the  will  of  her  husband  J.  A.  or  to  which  she  may  ho 
entitled  independent  of  the  will,"  is  not  a  compliance  with  the  net,  and  the 
settlement  is  void  as  to  the  creditors  of  the  husband  subsequent  to  the  niarringe. 
[*5] 

Josiah  Allen  died  about  IIOG,  having  before  made  and   executed   his 
last  will  and  testament,  by  which  he  bequeathed  his  whole  estate,  coii- 

(rt)  Smith  V.  Maxwell,  Ex'or,  1  Hill  Ch.  101. 


8  SOUTH    CAROLINA    EQUITY    REPORTS.  [*1 

sisting  of  slaves  and  other  personalty,  to  be  equally  divided  between  liis 
wife,  Janet  Allen,  and  his  two  sons,  Benj.  J.  Allen  and  Wna.  W.  Allen. 
William  died  some  time  after,  in  his  infancy,  and  consequently  without 
issue,  and  intestate,  so  that  his  portion  of  the  estate,  which  then  remained 
undivided,  descended  to  his  mother,  Janet,  and  his  brother  Benjamin,  the 
whole  of  which  remained  in  the  possession  of  Janet,  the  mother. 

In  1804,  and  subsequently  to  the  events  above  referred  to,  Janet  Allen 
entered  into  a  treaty  of  marriage  with  the  defendant,  Geo.  Rumph,  and 
in  contemplation  of  the  marriage,  they  joined  in  the  execution  of  a  deed, 
which  was  duly  recorded  in  the  office  of  Secretary  of  State.  In  this 
^gn  deed  is  recited  an  agreement,  "that  ^previous  to  the  performance  of 

-J  the  said  intended  marriage,  the  said  George  Rumph  should  assign 
and  make  over  all  and  singular  the  property  or  possession  that  the  said 
Janet  Allen  is  or  may  be  entitled  unto  by  virtue  of  the  said  will  of  the 
said  Josiah  Allen,  likewise  all  and  singular  the  property  and  possession 
which  she  now  has,  or  is  entitled  unto,  independent  of  the  said  will,  with 
the  increase  of  slaves,  stock,  &c.,  to  the  said  Janet  Allen,  her  heirs,  exe- 
cutors and  assigns  "  And  reciting  the  intended  marriage,  and  a  nominal 
sura  paid  as  the  consideration,  the  deed  proceeds  thus  :  "  The  said  George 
Rumph  hath  bargained,  sold,  and  by  these  presents  doth  bargain,  sell  and 
set  over  to  the  said  Janet  Allen,  her  heirs,  executors,  administrators  and 
assigns,  all  the  said  legacy,  so  bequeathed  by  the  said  Josiah  Allen,  and 
all  and  singular  any  other  species  of  property  belonging  to  the  estate  of 
the  said  Josiah  Allen,  or  which  she,  the  said  Janet  Allen,  is  or  may  be 
entitled  unto,  with  all  the  increase  of  slaves,  stock,  &c." 

The  marriage  was  solemnized  in  1805,  the  year  following  the  execution 
of  this  deed,  and  the  parties  lived  together  in  the  joint  possession  and 
use  of  the  entire  estate  of  Josiah  Allen,  (for  it  was  yet  undivided,)  until 
1816  or  1817,  when  they  separated,  and  Rumph,  the  husband,  went 
abroad  and  engaged  in  the  business  of  overseering  ;  and  shortly  after  (about 
1818)  the  estate  was  divided  between  Janet,  the  wife,  and  her  son  Ben- 
jamin ;  and  she,  with  her  portion,  went  to  live  with  a  relation.  Janet 
died  in  1828,  but  before  that  time  the  defendant  had  possessed  himself  of 
some  of  the  slaves,  and  after  her  death,  administration  of  her  estate  was 
granted  to  him,  and  he  took  possession  of  the  others.  As  a  circumstance, 
going  to  show  that  the  defendant  regarded  this  estate  as  the  separate 
property  of  his  wife,  it  is  stated  that  he  was  arrested  for  debt  in  1814, 
and  intended  to  apply  for  the  benefit  of  the  insolvent  debtor's  act,  he 
made  a  schedule,  of  his  effects  and  estate,  on  oath,  in  which  no  part  of 
this  estate  was  included,  and  it  is  conceded  that  he  is  now  insolvent. 

After  the  defendant  had  possessed  himself  of  all  the  negroes,  they  were 
taken  in  execution  by  the  sheriff,  to  satisfy  judgments  against  him  to  a 
large  amount,  and  the  original  bill  in  the  case  was  filed  by  the  plaintiff's 
testator,  who  survived  his  mother,  to  enjoin  the  creditors  from  selling  the 
negroes,  and  to  have  their  possession  restored  ;  but  in  the  bill  of  revivor, 
filed  by  the  plaintiff,  it  is  stated  that  they  have  been  since  sold  by  agree- 
^o-|  nieut,  *and  the  proceeds  deposited  with  the  attorney  of  the  judg- 

-■  ment  creditors,  subject  to  the  final  decree  of  the  Court,  without 
detriment  to  the  rights  of  any  of  the  parties. 

The  plaintiff  claimed  the  fund  for  his  testator,  as  sole  heir  of  his  deceased 
mother.     Rumph,  the  defendant,  claimed  it  in  virtue  of  his  marital  rights. 


*3]  CHARLESTON,    MARCH,    1834.  9 

If  his  claim  is  valid,  his  creditors  are  of  course  entitled  ;  but  whether  it  is 
or  not,  it  is  insisted  for  them,  that  the  deed  is  void  as  to  creditors,  because 
it  contains  no  particular  description  of  the  property  intended  to  be  settled, 
either  in  itself  or  by  a  schedule  attached,  as  required  by  the  Act  of  1792. 
The  case  \yas  heard  before  Chancellor  Johnston,  at  Walterborough, 
January,  1834,  who  held,  that  the  deed  executed  by  Rumph  ])rcvions  to 
his  marriage,  interposed  no  barrier  against  the  operation  of  the  marital 
rights  upon  his  subsequent  marriage  and  obtaining  possession  of  the  ])ro- 
perty,  and  decreed  accordingly.  From  this  decree  the  plaintiff  appealed, 
on  the  ground  :  that  the  deed,  executed  by  Rumph,  divested  him  of  his 
marital  rights,  and  vested  an  absolute  separate  estate  in  his  intended 
wife. 

Johnson,  J.  It  will  not  be  questioned  that  the  legal  estate  in  the 
property  of  the  wife  vested  in  the  husband  on  the  marriage.  At  the  time 
of  the  execution  of  this  deed,  the  property  which  it  professes  to  convey 
to  her  was  her  own,  consequently  the  defendant,  Rumph,  had  no  interest, 
and  could  convey  none,  so  that,  in  a  legal  point  of  view,  the  deed  was  a 
nullity.  The  result  would  have  been  the  same  if  the  property  had  been 
in  the  defendant,  Rumph,  and  by  him  conveyed  to  his  intended  wife  ;  all 
the  personal  goods  of  the  wife,  from  whatever  source  the  title  may  I)e 
derived,  vest  absolutely  in  the  husband  on  the  marriage.  But  contracts 
in  consideration  of  marriage  are  greatly  favored  in  chancery,  and  as 
between  the  parties  themselves,  and  other  persons  falling  within  the 
express  objects  of  contract,  they  will  be  enforced  according  to  the  obvious 
intent,  however  informally  or  irregularly  they  may  have  been  executed  ; 
and  that,  although  they  may,  as  in  this  case,  have  been  rendered  inope- 
rative at  law  by  the  intermarriage  of  the  parties,  and  equity  will  regard 
that  as  already  done  which  ought  to  have  been  done,  to  give  full  and 
legal  effect  to  the  intention  of  the  parties. 

*These  rules  are  sanctioned  by  this  Court  in  Colclough  and  Wife  p^ , 
V.  Colclough,  administrator  of  Carolan,  decided  at  Columbia,  at  ^ 
May  Term,  1831,  which  in  most  of  its  features  bears  a  striking  analogy 
to  the  case  in  hand.  Philip  (Carolan  and  Mary  Davis,  in  contemplation 
of  marriage,  entered  into  an  informal  agreement,  by  which  it  was  provided 
that  the  property  of  the  intended  wife  should  be  settled  to  the  use  of  the 
children  of  the  marriage,  and  in  default  of  children,  to  the  use  of  the  wife 
for  life,  and  at  her  death,  to  such  person  as  she  might  devise  it,  without 
providing  for  the  case  of  her  dying  intestate,  and  she  was  declared  Iiy  the 
deed  to  be  the  sole  trustee  of  the  property.  The  marriage  was  had,  and  the 
wife,  Mary,  died  without  any  issue  of  the  marriage  and  intestate.  The  hus- 
band survived  the  wife  and  retained  possession  of  the  property  until  his 
death,  which  occurred  sometime  after.  He  left  neither  wife  nor  any  other 
known  relation,  and  died  intestate.  The  question  was,  whether  the  property 
Avas  distributable  amongst  the  heirs  of  the  wife  or  vested  in  the  husltand  and 
escheated  for  the  want  of  heirs,  and  it  was  held  that  the  heirs  of  the  wife  were 
entitled  to  take  by  descent.  And  my  brother  Harper,  who  then  presided 
in  the  Court  of- Chancery,  after  laying  down  the  rule  that  marriage  articles 
will  be  carried  into  effect  in  Chancery  by  pursuing  the  intention  of  the 
parties  so  far  as  the  rules  of  law  will  permit,  remarks,  "that  if  the  parties 
themselves  had  executed  that  agreement  by  conveying  to  trustees  to  hold 


10  SOUTH    CAROLINA   EQUITY   EEPORTS.  [*4 

to  the  separate  use  of  the  wife  for  life,  remainder  to  the  children  of  the 
mavriap:e,  remainder  in  default  of  children,  to  such  person  as  the  wife 
might  appoint,  without  any  further  disposition,  the  undisposed  of  equitable 
remainder  must  have  continued  in  the  wife  herself,"  and  would,  in  effect, 
have  operated  as  a  limitation  to  her  right  heirs  and  legal  representatives, 
in  the  event  of  her  failing  to  make  the  appointment. 

Informal  and  inartificial  as  the  deed  under  consideration  certainly  is, 
there  is  no  question  about  the  intention  of  these  parties.  Janet  Allen 
was  possessed  of  slaves  and  other  personalty  bequeathed  to  her  by  her 
deceased  husband,  and  was  about  to  enter  into  matrimony  with  the 
^--j  defendant,  Rumph.  He,  reciting  the  intended  *marriage,  under- 
'^-'  takes  to  convey  this  property  to  her,  and  regarding  the  terms  her 
heirs,  executors,  adminidrators  and  as^/igns,  as  only  expressive  of  the 
quantity  of  the  estate  intended  to  be  conveyed,  and  not  as  a  limitation 
over,  it  covers  the  entire,  the  absolute  estate.  To  give  effect  to  this  con- 
tract at  law,  the  conveyance  ought  to  have  been  to  some  third  person  as 
trustee  for  these  uses,  but  equity  presumes  that  done,  which  ought  to 
have  been  done,  and  in  adjusting  the  rights  of  the  parties  in  this  Court, 
we  must  suppose  that  the  intended  husband  and  wife,  George  Rumph 
and  Janet  Allen,  had  joined  in  a  deed  conveying  this  property  to  some 
third  person,  in  "  trust  for  the  said  Janet,  her  heirs,  executors,  adminis- 
trators and  assigns."  In  that  case,  it  is  obvious  that  the  marital  rights 
of  the  husband  could  not  attach,  because  the  property  was  in  another, 
and  not  in  the  wife.  It  could  not  attach  after  the  death  of  the  wife, 
because  the  bond  which  united  them,  and  conferred  on  the  husband  a 
light  of  property  in  her  goods,  unless  as  an  heir,  was  dissolved  on  the 
instant  of  her  death.  It  is  true,  as  in  the  case  of  Colelough  and  Wife  v. 
Colclough,  Administrator,  the  heirs  of  the  wife,  as  between  themselves 
and  the  husband,  are  entitled  to  have  distribution  of  the  estate,  and  under 
the  Act  of  1791,  the  defendant,  the  husband,  is  entitled  to  one-third,  and 
the  plaintiflTs  testator,  her  surviving  son,  to  the  remaining  two-thirds. 

According  to  this  view  of  the  case,  the  creditors  of  the  defendants 
would  only  be  entitled  to  his  one-third  part  of  the  fund.  But  the  Act  of 
1792,  (1  Faust,  209,)  declares  that  all  marriage  contracts,  deeds  or  set- 
tlements, shall  specify  and  particularize  the  property  intended  to  be 
settled,  or  shall  have  a  schedule  thereunto  annexed,  containing  a  parti- 
cular description  of  it,  and  in  default  of  such  schedule,  they  are  declared 
to  be  fraudulent,  null  and  void,  with  respect  to  and  against  creditors,  and 
ho  n  a  fide  purchasers  and  mortgagees;  with  a  proviso,  that  the  settlement 
should  be  good  notwithstanding,  as  to  debts  contracted  by  the  husband 
before  marriage.  In  this  deed,  the  property  is  described,  as  that  "  to 
which  Janet  Allen  is  entitled  to,  under  the  will  of  her  husband,  Josiah 
Allen,  or  to  which  she  may  be  entitled,  independent  of  the  will;"  cer- 
tainly not  corresponding  with  the  particularity  intended  by  the  Act,  nor 
is  there  any  schedule  connected  with  it,  containing  a  more  certain 
description.     It  is  therefore  void  as  to  creditors. 

The  creditors  claiming,  are,  according  to  a  list  of  judgments,  which 
has  been  brought  up  here,  all  for  debts  contracted  subsequent  to  the 
5j.„-|  marriage.     It  is  therefore  ordered  and  decreed,  that  *one-third  of 

-•  the  fund  in  the  hands  of  the  attorney  for  the  creditors,  be  applied  to 
the  payment  of  the  debts,  according  to  "their  legal  priority,  and  if  that 


*6]  CHARLESTON,    MARCH,    1884.  I  I 

should  satisfy  all  the  debts,  that  the  reiiiaiuiug  two-thirds  be  jiaid  ovlt 
to  the  plaintiff;  but  if  the  one-third  shall  be  insuiiicieut  to  pay  the  debts, 
the  remaining  two-thirds,  or  so  much  thereof  as  may  be  necessary,  lie 
applied  to  the  payment  of  the  remaining  debts  according  to  their  legal 
priority,  and  the  balance,  if  any,  be  paid  to  the  plaintiff. 

Harper,  J.,  concurred. 

Elmore  and  Udivards,  for  the  appellant. 

MemmiiKjer  and  King,  contra. 


Executors  of  Alexander  Gray,  deceased,  v.  George  Rumph. 

A  paper  with  blanks  as  for  a  penal  bond,  tlie  condition  only  filled  up  witli  the  sum 
but  not  the  name  of  the  obligee,  dated,  and  signed  by  the  defendant,  under 
the  circumstances  of  the  case,  perfected  and  set  up  as  a  bond,  and  payment  de- 
creed. [*8] 

Colleton,  January  Term,  1834. — Before  Chancellor  Johnston. 
The  object  of  this  bill  was  to  perfect  and  set  up  the  following  paper  as 
a  bond,  and  to  compel  the  payment  thereof. 

State  of  South  Carolina  : 

Know  all  men  by  these  presents,  that  held  and 

firmly  bound  unto  in  the  full  and  just  sum  of 

certain  attorney,  executors,  administrators  or  assigns.  To  which  pay- 
ment, well  and  truly  to  be  made  and  done,  I  bind  myself,  and  each  and 
every  of  my  heirs,  executors  and  administrators,  firmly  by  these  presents, 
sealed  with  my  seal,  and  dated  the  twenty-fourth  day  of  June,  A.  D.,  one 
thousand  eight  hundred  and  twenty,  and  in  the  forty-fourth  year  of 
American  Independence. 

The  condition  of  the  above  obligation  is  such,  that  if  the  above  bound 
heirs,  executors  or  administrators,  shall  and  do,  well  and 
truly  pay,  or  cause  to  be  paid  unto  the  above-named  certain 

attorney,  executors,  administrators  or  assigns,  the  full  and  just  sura  of 
ten  hundred  and  thirty-one  dollars  twenty-four  cents,  with  interest  from 
the  date,  on  or  before  the  first  day  of  January,  which  will  be  in  the  year 
of  our  Lord  one  thousand  eight  ^hundred  and  twenty-one,  without  p^. 
fraud  or  further  delay,  then  the  above  obligation  to  be  void  and  of  L 
none  effect,  or  else  to  remain  in  full  force  and  virtue. 

George  Ru.mph,  [l.s.] 

Signed,  sealed  and  delivered"^ 
in  presence  of  ) 

The  bill  states  that,  as  appears  by  the  books  of  the  plaintiffs'  testator, 
who  was  a  merchant,  the  defendant  was  indebted  to  him  $1031  24,  whicii^ 
sum,  according  to  an  entry  in  the  books,  is  credited  in  full,  by  ))ond  of 
the  date  of  the  foregoing.  That  the  practice  of  the  testator  was  to  take 
such  bonds  for  debts  due  to  him,  which  were  afterwards  filled  up  ;  and 


12  SOUTH   CAROLINA    EQUITY   REPORTS.  [*7 

that  this  paper,  corresponding  in  amount  and  date  with  the  books,  was 
intended  by  the  parties  as  a  bond,  and  to  be  in  settlement  of  that 
account. 

The  answer  of  the  defendant  admits  that  he  signed  the  paper,  but 
denies  that  it  was  intended  or  considered  as  a  bond,  but  that  he  signed 
it  at  the  request  of  Gray,  merely,  as  he  said,  to  close  the  books,  and  that 
they  would  come  to  a  settlement  at  some  future  day.  That  he  had 
demands  against  Gray,  by  which  he  considered  the  book  account  fully 
paid.  Tliat  the  paper  in  question  wants  the  legal  requisites  of  a  bond, 
and  to  establish  it  as  such,  would  opei'ate  as  a  fraud  on  him  ;  and  if  it 
is  not  so  established,  the  statute  of  limitations  is  a  bar  to  the  demands 
against  him. 

It  was  admitted  that  there  was  an  entry  on  Gray's  books  against  the 
defendant  for  $1031  24,  and  that  he  is  there  credited  as  stated  in  the  bill. 
And  the  plaintiffs  further  showed,  that  in  1808,  the  defendant  confessed 
a  judgment  to  Gray,  on  a  paper  purporting  to  be  a  bond  and  so  described 
in  the  declaration,  filled  up  in  the  same  manner  and  with  the  same  omis- 
sions as  that  now  in  question. 

The  Chancellor  held,  that  according  to  the  decisions  of  our  Courts, 
such  a  paper  as  that  now  attempted  to  be  set  up  is  void  at  law ;  and 
that  the  equity  to  set  it  up  is  sworn  off  by  the  answer,  there  being  no 
sufficient  proof  to  the  contrary.     He  accordingly  dismissed  the  bill. 

The  plaintiffs  appealed  on  the  ground,  that  under  the  circumstances  of 
the  case,  the  Chancellor  should  have  established  the  instrument  as  a  bond 
and  decreed  payment  thereof. 

Meviminger,  for  the  appellants,  contended,  that  the  books  of  the 
^n-j  plaintiffs'  testator  proved  the  existence  of  the  debt,  which  should  *be 

■^  disproved  by  other  evidence  than  the  answer:  that  the  signature  to 
the  paper  being  admitted,  it  was  manifest,  notwithstanding  the  answer, 
that  the  parties  regarded  it  as  a  bond ;  and  it  is  the  province  of  a  Court 
of  Equity  to  supply  accidental  omissions  or  mistakes  in  form,  in  the  exe- 
cution of  writings.  Finch  v.  Finch,  1  Ves  545;  (Jillespie  u.  Moon,  2 
John.  Ch.  585 ;  "5  Ves  557  ;  3  Br.  C.  C.  229  ;  2  Eq.  Rep.  115  :  8  lb. 
84  ;   1  Day's  Ca.  Er.  139. 

Elmo7'e  and  JSchcards,  contra. 

O'Neall,  J.  In  any  point  of  view  in  which  we  consider  this  case,  it 
seems  to  me  that  the  plaintiffs  are  entitled  to  relief. 

The  defendant  signs  and  seals  a  paper  with  blanks  for  a  penal  bond, 
dated  24th  June,  1820.     Underneath  is  a  condition  to  pay  to 

the  sum  of  $1031  24,  with  interest  from  the  date  on  or  before  the 
1st  January,  1821.  Can  there  be  a  doubt  that  he  intended  it  as  a  bond  ? 
The  intrinsic  evidence  of  the  thing  itself,  shows  that  it  was  so  intended  ; 
a  delivery  is  to  be  presumed  from  the  fact  that  it  is  found  in  the  posses- 
sion of  the  testator ;  indeed  the  defendant's  answer  does  not  deny  that  it 
was  delivered.  If  the  condition  had  contained  the  name  of  the  obligee, 
I  should  have  thought  it  a  perfect  single  bond.  As  it  is,  it  can  have  no 
legal  effect.  _  The  only  question  is,  whether  equity  will  perfect  it  ?  The 
defendant's  intention  to  execute  it  as  a  penal  bond  with  a  money  condi- 
tion underwritten,  is,  as  I  have  already  shown,  apparent.      That  the 


*8]  CHARLESTON,    MARCH,    1834.  13 

plaintiffs'  testator  received  it  in  the  same  cliaractcr,  is  manifest,  from  the 
entry  of  credit  in  his  books  of  tlic  same  date  and  for  a  like  sum.  Tut 
the  case,  tlierefore,  upon  the  footing  of  either  mistake  or  agreement,  and 
the  plaintiffs  would  have  the  right  to  have  the  blanks  filled  up,  and  the 
bond  thus  perfected  as  a  legal  instrument.  It  is  said,  however,  that  this 
cannot  be  done,  inasmuch  as  the  defendant  in  his  answer  denies  that  it 
was  intended  or  considered  as  a  bond.  This  is  fully  contradicted  ))y  the 
paper  itself  and  the  testator's  books,  and  cannot  be  allowed  to  prevail 
against  them. 

But  concede  that  the  case  must  be  judged  of  by  the  defendant's  answer. 
He  has  admitted  that  he  signed  the  paper  exhibited,  and  that  it  was 
intended  by  Gray  and  himself  to  stand  merely  as  a  memorandum  of  a  sum 
assumed  to  be  due,  so  that  the  books  might  *be  closed,  and  tliat  r-^^. 
the  amount  really  due  was  to  be  settled  at  a  future  day.  In  this  L 
point  of  view,  he  has  admitted  enough  to  entitle  the  plaintiffs  to  recover. 
The  admission  of  the  signature  carries  with  it  an  admission  of  the  seal,  un- 
less the  latter  had  been  denied.  The  defendant  in  his  statement  impliedly 
admits  a  delivery  to  the  testator,  Gray  ;  so,  that,  by  specialty,  he  admits 
that  the  sum  of  $1031  24  is  due  to  the  testator,  unless  it  should  be 
reduced  by  the  proposed  future  settlement.  This  makes  the  paper,  when 
the  intention  of  the  parties  is  carried  out,  a  bond  for  $1031   24. 

There  is,  in  this  view  of  the  case,  no  pretence  upon  which  the  plea  of 
the  statute  of  limitations  can  be  supported. 

It  is  ordered  and  decreed,  that  the  Chancellor's  decree  be  reversed  ; 
that  it  be  referred  to  the  commissioner  to  ascertain  and  rejiort  whether 
any  and  what  sums  are  due  to  the  defendant  by  the  plaintiffs'  testator, 
and  that  such  sums,  at  the  day  when  due,  be  deducted  fro_m  the  amount 
admitted  to  be  due  by  the  paper  of  the  24th  June,  ISgO,  which  is 
hereby  set  up  as  the  bond  of  the  defendant ;  and  to  report  whatever 
balance  may  still  be  due  to  the  plaintiffs  by  the  defendant,  on  account 
of  interest  as  well  as  principal  due  on  the  said  bond,  which  balance, 
together  with  the  costs  of  this  suit,  the  defendant  is  hereby  decreed  to 
pay. 

Johnson  and  Harper,  Js.,  concurred. 


John  W.   Monk,  Administrator  of  Judy,  v.  Elizabeth  M.  Jenkins, 
Executrix  of  John  Cato  Fields  and  John  S.  Fields. 

■When  a  statute  authorizes  a  proceeding  not  before  allowed  by  law,  and  prescribes 
the  mode  in  which  it  shall  be  done,  the  mode  pointed  out  must  be  strictly  pursued 
or  the  proceeding  will  be  void:  but  when  a  proceeding  is  permitted  by  the  general 
law,  and  a  statute  directs  a  particular  form  in  which  it  shall  thereiifter  be  con- 
ducted, it  will  depend  on  the  terms  of  the  statute  whether  it  is  merely  tliroctory, 
subjecting  the  parties  to  some  disability  if  it  be  not  complied  with,  or  shall  render 
the  proceeding  void.  [*12] 

Before  the  Act  of  18110,  emancipation  was  permitted  in  anyway  in  which  the  mnster 
might  signify  his  intention. — That  statute  does  not  render  any  act  of  emancipation 
which  does  not  conform  to  its  provisions  void,  but  merely  subjects  the  shiyc  so 
illegally  emancipated  to  seizure;  and  until  seizure,  the  slave  emancipated  will  be 
regarded  as  free.  [*13] 


14  SOUTH   CAROLINA   EQUITY    REPORTS.  [*9 

The  delivery  of  a  deed  of  emancipation,  .ifter  lonp;  lapse  of  time,  and  the  enjoyment  of 
rights  under  it  may  be  presumed;  but  tlie  only  delivery  contemjilated  by  the  Act 
of  1800,  is  the  lodging  it  with  the  clerk  to  be  recorded,  and  it  is  the  duty  of  the 
master  to  lodge  it.  ['"14] 

Lodging  a  deed  of  emancijintion  with  the  clerk,  is  a  suflBcient  recording;  and  ■with 
respect  to  any  person  seizing  the  slave,  if  the  deed  was  in  the  office  at  the  time 
of  seizure,  the  presumption  would  be  that  it  was  lodged  in  due  time.  [*14] 

Colleton,  January,  1834. — Before  Chancellor  Johnston. 

This  bill  was  filed  by  the  plaintiff,  as  the  administrator  of  Judy,  a 
woman  of  color,  formerly  the  slave  of  John  Cato  Fields,  deceased.  It 
states  that  the  said  John  Cato  Fields,  being  the  lawful  owner  of  Judy, 
on  the  14th  April,  ISOG,  executed  a  deed  of  manumission,  by  which  Judy 
was  emancipated  and  set  free.  A  copy  of  the  deed,  with  the  examination 
before  a  justice,  and  the  certificate  prescribed  by  the  Act  of  Assembly, 
were  filed  as  exhibits  to  the  bill.  That  John  Cato  Fields,  died  in  1817, 
leaving  a  will,  in  which  he  bequeathed  certain  slaves  and  other  property 
^-.^-1  to  Judy,  *and  appointed  one  Hughes  her  trustee,  and  that  after 
-J  the  death  of  the  testator,  his  executors  put  Judy  in  tiie  possession 
of  the  legacy.  Shortly  after  the  death  of  Fields,  both  Judy  and  Hughes, 
her  trustee,  died,  and  the  defendant,  Elizabeth  M.  Jenkins,  who  is  now 
the  executrix,  and  John  S.  Fields,  who  intermarried  with  the  residuary 
legatee,  are  now  in  possession  of  the  property,  and  refuse  to  deliver  it  up. 
The  bill  prays  an  account  for  rents  and  profits,  and  the  delivery  of  the 
property.  The  defendants  pleaded:  1.  That  John  Cato  Fields  never 
executed  such  deed  as  is  required  by  the  Act  of  1800,  prescribing  the 
form  of  emancipation.  2.  That  no  such  deed  has  been  recorded  within 
the  time  prescribed  by  the  Act.  . 

On  the  hearing  of  the  case,  the  Clerk  of  the  Court  was  examined  as  a 
witness,  and  testified  that  he  found  the  deed  among  the  papers  of  the 
office,  labelled,  and  an  endorsement  in  the  handwriting  of  a  former  clerk, 
specifying  its  contents,  but  not  indicating  the  time  it  was  delivered  to 
him.  There  was  no  evidence  given  that  the  deed  was  delivered  within 
the  six  months  prescribed  by  law. 

The  Chancellor  dismissed  the  bill  for  want  of  jurisdiction,  inasmuch  as 
it  made  a  proper  case  for  relief  at  law;  but  he  overruled  both  pleas. 
The  defendants  appealed  from  the  decision  of  the  Chancellor  on  the 
pleas,  and  make  the  further  ground  :  That  the  plaintifis  has  no  civil 
status,  and  cannot  therefore  maintain  his  bill. 

Memminger,  for  the  appellants,  insisted  that,  by  the  law  of  this  State, 
(P.  L.  163,)  every  person  of  color  is  presumed  to  be  a  slave,  and  the 
onus  of  proving  freedom  is  thrown  on  the  plaintiff,  and  this  can  only  be 
done  by  showing  a  strict  compliance  with  the  Act  of  1800,  (2  Faust. 
3.00,)  prescribing  the  form  of  emancipation.  One  requisite  of  the  Act  is, 
that  it  must  be  by  deed,  and  to  constitute  a  deed  there  must  be  a  delivery. 
Shep.  Touch.  5Y.  Delivery  to  the  slave  would  not  be  sufficient,  for  there 
must  be  a  party  capable  of  being  contracted  with,  and  accepting  the 
deed.  Shep.  Touch.  55  ;  Co.  Lit.  35,  b.  And  a  slave  is  not  a  person 
in  law,  but  a  mere  chattel.  The  Act  requires  a  copy  of  the  deed  to  be 
delivered  to  the  emancipated  slave,  and  this  may  be  regarded  as  equiva- 
lent to  delivery  at  common  law  ;  but  there  is  no  evidence  that  a  copy  was 
so  delivered.     Delivery  of  some  sort  is  essentially  requisite  to  perfect  the 


*]0]  CHARLESTON-,    MARCH,    1834.  15 

act  of  emancipation.  The  deed  must  be  ^recorded  within  a  pre-  j.^.. 
scribed  time ;  but  there  is  no  probate  on  the  deed,  without  which  l 
it  could  not  be  recorded,  and  if  the  lodgment  with  the  clerk  be  regarded 
as  a  sufficient  recording,  nevertheless,  it  should  appear  that  the  lodging 
was  within  the  prescribed  time.  Cited  2  Con.  Rep.  12  ;  1  Bail.  42 i  ;  2 
Hen.  &  Munf.  467. 

R.  B.  Smith,  contra.  The  deed  is  now  twenty-eight  years  old.  J.  C. 
F.  lived  eleven  years  after  its  execution,  and  so  far  from  calling  it  in 
question,  he  recognized  it  in  his  will.  The  person  for  whose  benefit  it 
was  made,  in  her  life-time  exercised  rights  under  it.  She  is  now  dead, 
and  her  children  and  grandchildren  are  now  interested.  Under  these 
circumstances,  the  Court  will  presume  a  delivery  of  the  deed,  if  that  be 
necessary— that  it  was  legally  recorded,  or  delivered  to  the  clerk,  within 
the  prescribed  time — in  short,  everything  which  may  be  necessary  to  give 
it  effect.  The  Act  requires  an  attested  copy  to  be  furnished  to  the  slave, 
and  it  would  seem,  by  implication,  to  be  the  duty  of  the  clerk  to  retain 
the  original,  and  recording  will  be  presumed.  3  Harris  &  M'H.  102. 
Delivering  a  deed  to  the  recording  officer  is  regarded  as  recording. 
Marbury  v.  Madison,  1  Cranch,  161;  Kirby,  72;  1  Marshall,  306. 
Under  the  Act,  it  is  made  the  duty  of  J.  C.  F.  to  have  the  deed  re- 
corded, and  a  copy  delivered.  He,  or  those  claiming  under  him,  cannot 
be  permitted  to  take  advantage  of  his  wrongful  neglect  of  duty,  in  order 
to  avoid  his  own  deed.  If  the  heir  prevent  the  due  execution  of  a  will, 
equity  will  relieve.  So  also  if  the  executor  prevent  the  execution. 
There  are  numerous  cases  in  which  equity  will  relieve  against  neglect  to 
conform  to  a  statute,  especially  when  there  is  no  blame  in  the  party  to 
be  benefited.  2  East.  399  ;  11  East,  030;  1  D.  &  E.  734;  6  Ves.  743; 
11  Yes.  623,  645. 

Grimke,  in  reply,  argued  that  emancipation  is  now  an  act  of  sove- 
reignty, which  the  Legislature  have  taken  into  their  own  hands  :  \i  fixes 
the  status  of  the  person  emancipated,  and  gives  him  a  new  relation  to 
the  community.  This  is  then  a  question  of  public  policy,  and  not  one 
merely  of  meura  and  tuum  ;  and  it  behooves  the  Court  to  see  that  the 
forms  of  law  have  been  complied  with,  otherwise  persons  may  exercise 
civil  privileges  who  are  not  entitled  to  them.  The  presumption  of  law  is, 
that  Judy  was  a  slave.  Act  of  Assembly,  1740  ;  2  Bibb.  238  ;  3  Am.  Pig. 
484.  And  to  rebut  this  presumption,  it  must  be  shown  on  her  ]iart  that 
the  Act  of  1800,  which  prescribes  the  forms  of  emancipation,  has  been 
♦strictly  followed.  The  Act  requires  it  to  be  done  by  deed,  and  j-^j2 
without  delivery  there  can  be  no  deed.  It  may  not  be  necessary  ^ 
that  the  delivery  should  be  to  Judy.  Perhaps  the  magistrate  might 
accept  it.  But  no  deliverv  is  proved.  As  to  the  recording,  whose  duty 
was  it  to  have  the  deed  recorded  ?  By  the  delivery,  the  master  parts 
Avith  the  possession  of  the  deed,  and  it  cannot,  therefore,  be  his  duty  to 
have  a  paper  recorded  which  is  not  in  his  possession.  Those  who  are 
interested  are  bound  to  have  it  recorded.  The  attested  copy  is  to  serve 
between  the  master  and  slave ;  the  recording  is  a  matter  between  the 
slave  and  the  public,  and  is  essential  to  the  validity  of  the  act.  Is  the 
delivery  to  the  clerk  tantamount  to  recording  ?  It  may  be  so,  it  the  deed 
be   ready  for   registration,  and  be   delivered  in  proper  time  ;    but  to 


16  SOUTH    CAROLINA    EQUITY    REPORTS.  [*12 

authorize  recording,  tbeve  must  have  been  a  probate,  (1  Brev.  Dig.  316,) 
which  there  was  not.  If  lodging  it  with  the  clerk  be  recording,  it  should 
be  shown  to  have  been  done  within  the  legal  time  ;  for  if  it  was  delivered 
to  him  within  the  time,  he  was  bound  to  enter  it,  otherwise  he  was  not. 
The  presumption  is  against  the  slave,  and  applies  to  everv  doubtful  fact. 
Cited  1  Pennington,  10;  3  Am.  Dig.  477-8,  485;  19  John.  Rep.  53. 

Harper,  J,  The  appeal  is  only  from  so  much  of  the  decision  of  the 
Chancellor  as  overrules  the  pleas  of  the  defendant.  In  this  respect  we 
agree  with  the  Chancellor.  He  reports  that  the  woman,  Judy,  had  the 
uninterrupted  enjoyment  of  freedom  from  the  date  of  the  deed  to  her 
death,  and  was  recognized  as  a  free  person  by  the  will  of  her  former 
owner,  John  Cato  Fields.  Under  these  circumstances,  I  am  of  opinion 
that  neither  John  Cato  Fields,  nor  any  person  claiming  as  a  volunteer 
under  him,  could  dispute  the  validity  of  the  emancipation,  even  if  there 
had  been  no  deed. 

When  a  statute  is  passed  authorizing  a  proceeding,  which  was  not 
allowed  by  the  general  law  before,  and  directing  a  mode  in  which  the  act 
shall  be  done,  here  the  mode  pointed  out  must  be  strictly  pursued.  It  is 
a  condition  on  which  alone  a  party  can  entitle  himself  to  the  benefit  of 
the  statute,  that  its  directions  shall  be  strictly  complied  with  ;  otherwise 
the  proceeding  will  be  void.  But  when  a  proceeding  is  permitted  by 
^■loi  the  general  law,  and  an  *Act  of  the  Legislature  directs  a  parti- 
-'  cular  form  and  manner  in  which  it  shall  be  conducted,  then  it  will 
depend  on  the  terms  of  the  Act  itself,  whether  it  shall  be  considered 
merely  directory,  subjecting  the  parties  to  some  disability  if  it  be  not 
complied  with,  or  whether  it  shall  render  the  proceeding  void.  If  no 
emancipation  were  permitted,  (as  the  law  is  at  present,)  and  an  Act  of 
the  Legislature  should  permit  owners  of  slaves  to  emancipate  them  in 
some  prescribed  form,  if  the  form  were  not  complied  with,  the  Act  would 
be  void.  But  the  several  Acts  of  the  British  Parliament  directing  that 
public  officers  shall  not  enter  on  the  duties  of  their  office  until  they  shall 
have  taken  the  oaths  to  government,  have  been  construed  not  to  render 
their  official  acts  void  if  they  will  take  upon  themselves  to  act,  but  to 
render  the  officer  personally  responsible  for  a  violation  of  law.  There 
are  a  great  number  of  instances  of  the  same  sort. 

It  is  to  be  recollected  that  before  the  Act  of  1800,  which  is  now  in 
question,  emancipation  was  permitted  in  any  manner  by  which  the  master 
might  signify  his  intention  to  emancipate.  The  Act  prescribes  that  after 
its  passage  "  it  shall  not  be  lawful  for  any  person  or  persons  to  emancipate 
his,  her  or  their  slave  or  slaves,  except  according  to  the  forms  and  regu- 
lations hereinafter  prescribed,"  &c.  If  the  Act  had  stopped  here  there 
might  be  ground  to  contend  that  the  act  of  emancipation  would  be  void, 
if  not  done  in  the  manner  prescribed.  But  the  Act  itself  goes  on  to  say 
what  the  consequences  shall  be  if  the  forms  and  regulations  directed  by 
it  are  not  pursued.  A  subsequent  clause  provides,  that  "  in  case  any 
slave  shall  hereafter  be  emancipated  or  set  free,  otherwise  than  according 
to  this  Act,  it  shall  and  may  be  lawful  for  an}^  person  w^hatsoever  to  seize 
and  convert  to  his  or  her  own  use,  and  to  keep  as  his  or  her  own  property, 
the  said  slave,  so  illegally  emancipated  or  set  free."  Here  is  a  plain 
recognition  by  the  Act  itself,  that  slaves  may  be  emancipated  or  set  free, 


*13] 


CHARLESTON,    MARCH,    1834.  17 


otherwise  than  according  to  its  directions.  On  this  view  was  founded 
the  decision  of  the  Court,  in  Johnson  v.  Linani,  2  Bail.  137.  "Where  the 
master  had  emancipated  the  slave  in  an  irregular  manner,  it  was  held 
that,  however  the  slave  might  be  liable  to  seizure  under  the  terms  of  the 
Act.  the  master's  properety  was  divested,  so  that  he  could  not  maintain 
au  action  to  recover  the  slave.  There  can  be  no  slave  without  a  master, 
and  it  follows,  that  after  such  irregular  emancipation,  until  seizure  is 
actually  made,  the  emancipated  slave  must  stand  on  the  *footing  of  r^^i . 
any  other  free  negro.  In  the  case  before  us,  the  woman  was  never  L 
seized,  and  being  now  dead,  never  can  be,  Her  legal  representative  has 
the  same  standing  in  Court  that  the  representative  of  any  other  free  negro 
would  have.  It  is  true  that  the  presumption  of  our  law  is  against  a 
negro's  freedom,  and  that  this  is  a  question  which  concerns  the  public. 
But  the  security  of  the  public  was  provided  for  by  subjecting  the  irregu- 
larly emancipated  slave  to  seizure.  As  between  the  slave  and  the  master, 
or  those  claiming  under  him,  it  is  merely  a  question  of  individual  right. 

The  view  which  I  have  taken  might,  for  the  purposes  of  the  present 
case,  dispense  with  the  necessity  of  considering  the  toi)ics  which  were 
urged  in  argument  with  respect  to  the  validity  of  the  deed  itself  I  shall, 
however,  advert  to  them  very  briefly. 

Firsi,  as  to  the  delivery.  I  concur  with  the  Chancellor,  that  if  it  were 
necessary  to  rest  upon  presumption,  there  is  enough  to  presume  a  delivery 
of  the  deed.  There  is  nothing  in  the  Act  to  render  a  trustee  or  guardian 
necessary.  Before  the  Act,  the  very  fact  of  executing  the  deed  would 
have  rendered  the  slave  capable  to  accept  it.  But  from  the  terms  of  the 
whole  Act,  I  am  satisfied  that  the  only  delivery  contemplated  was  the 
lodging  of  the  deed  with  the  clerk  to  be  recorded.  It  is  not  to  be  sup- 
posed that  the  maker  of  the  deed,  against  whom  it  is  evidence,  shall  be 
the  person  to  retain  it.  The  emancipated  slave  is  not  to  have  it,  for  he 
is  to  be  furnished  with  a  copy  attested  by  the  clerk,  and  it  is  made  the 
duty  of  the  master,  under  a  penalty,  to  deliver  to  him  such  copy,  and  con- 
sequently, to  deliver  the  deed  to  the  clerk,  who  is  to  furnish  and  attest 
such  copy. 

It  would  be  useless  to  inquire,  whether  the  provision  of  the  Act,  that 
the  deed  shall  be  void  unless  recorded  within  six  months,  was  intended 
merely  for  the  benefit  of  creditors  and  purchasers,  or  applies  to  the  master 
himself;  as  from  the  view  I  have  taken,  the  master  is  bound  by  his  act  of 
emancipation,  independently  of  the  deed. 

Then  supposing  the  deed  to  have  been  lodged  within  the  time  prescribed 
by  law,  I  am  of  opinion  that  this  was  a  sufficient  recording  within  the 
meaning  of  the  Act.  The  clerk  is  a  public  officer,  directed  to  record 
such  deeds  when  lodged  with  him,  and  his  neglect  or  omission  would  not 
be  permitted  to  work  a  prejudice  to  *third  persons  who  were  m  r*^^ 
no  default.  But,  as  was  said  in  argument,  recording  does  not 
merely  mean  transcribing  in  a  book.  The  rolls  of  Courts  are  records, 
though  not  transcribed.  The  original  furnishes  at  least  as  authentic  evi- 
dence as  a  copy,  and  if  that  be  lodged  in  the  office,  there  to  remain  as  a 
public  document  for  the  information  of  all  who  may  inquire,  this  is  a 
sufficient  recording,  however  proper  and  convenient  it  may  be,  that  the 
clerk  should  make  a  transcript-in  a  book  kept  for  that  purpose. 

Then  the  deed  being  found  iu  the  clerk's  office,  without  any  evidence 


18  SOUTH    CAROLIXA    EQUITY    REPORTS.  [*15 

of  the  time  when  it  was  lodged,  are  we  to  presume  it  was  lodged  within 
the  time  prescribed  l)y  law,  or  the  contrary  ?  Without  entering  to  rea- 
soning on  the  subject,  I  incline  to  the  opinion  that  with  respect  to  any 
person  who  should  seize  the  slave,  provided  it  appeared  that  the  deed 
was  actually  in  the  office  at  the  time  the  seizure  was  made,  the  presump- 
tion would  be,  that  it  was  lodged  in  due  time.  With  respect  to  creditors 
and  purchasers,  I  give  no  opiniou. 

The  motion  to  reverse  the  Chancellor's  decision,  is  refused. 

'■    Johnson  and  O'Neall,  Js.,  concurred. 


John  C.  Patterson  v.  S.  W.  Leith,  Executor  of  William 
Patterson. 

Parol  evidence  is  inadmissible  to  explain  a  Tvill  except  in  a  case  of  latent  ambiguity, 

P16] 
A  bequest  in  these  words,  "it  is  my  •will  that  the  sum  of  one  hundred  and  fifty 

dollars,  be  paid  out  of  the  profits,  or  moneys  arising  out  of  my  estate,  to  my  son 

J.  C,  as  a  maintenance  for  him,  for  and  during  his  natural  life  and  no  lon-er," 

held  to  be  an  annuity.  [*16] 

Colleton.  Before  Chancellor  Johnston,  who  delivered  the  following- 
decree  : 

The  bill  in  this  case  is  filed  to  establish  as  an  annuity,  a  legacy  left  by 
the  defendant's  testator  to  the  plaintiff,  the  bequest  of  which  is  in  these 
words  :  "  It  is  my  will,  that  the  sum  of  one  hundred  and  fifty  dollars  be  paid 
out  of  the  profits  or  moneys  arising  out  of  my  estate,  to  my  son  John  C. 
as  a  maintenance  for  him,  for  and  during  his  natural  life,  and  no  longer." 

The  answer  admits  the  bequest,  but  denies  that  it  was  intended  as  an 
annuity,  and  contends  that  it  is  a  mere  pecuniary  legacy  for  that  gross 
sum. 

*1R1  *Upon  the  trial,  the  defendant's  counsel  offered  as  a  witness  the 
-^  defendant,  S,  W.  Leith,  to  prove  that  he*  drew  the  will,  and  to 
testify  as  to  the  intention  of  the  testator.  He  was  objected  to  by  the 
counsel  for  the  plaintiff,  and  the  Court  sustained  the  objection,  because 
such  testimony  was  considered  as  inadmissible  as  mere  parol  introduced 
to  explain  the  intent  of  a  will,  and  because  the  witness  was  a  party  to 
this  suit,  and  the  only  defendant  on  the  record. 

The  defendant's  counsel  then  offered  Malachi  Ford  as  a  witness,  to 
show  the  circumstances  of  the  plaintiff  at  the  time  of  the  testator's  death, 
with  a  view  to  ascertain  the  intention  of  the  testator.  He  was  excluded 
for  the  reason  first  above  stated. 

The  cause  was  then  argued  on  the  bill  and  answer,  and  submitted  to  the 
judgment  of  the  Court.  Upon  examination  of  tlie  clause  of  the  will,  under 
which  the  plaintiff  claims,  it  will  be  observed  that  the  sum  of  one  hundred 
and  fifty  dollars  is  to  be  paid  from  "profits  or  moneys"  arising  from  the 
estate.  The  counsel  has  cited  a  number  of  cases,  in  which  it  has  been 
decided  that  the  natural  sense  of  these  words  is  "  annual  profits  ;"  and  I 
think  such  a  construction  of  the  present  bequest  is  much  strengthened  by 
the  other  words  used  in  it.     For  the  testator  not  only  bequeaths  this  sum 


*16]  CHARLESTON,    MARCH,    1534.  19 

as  a  maintenance  for  his  son,  but  he  dechxres  that  it  is  to  be  for  his  natu- 
ral life  and  no  longer.     Now,  maintenance  would  seem  to  imply  that  it 

is  to  be  furnished  from  time  to  time  as  occasion  would  call  for  it the 

maintenance  of  the  son  could  not  be  accomplished  by  a  single  payment,  it 
necessarily  required  a  new  payment  so  often  as  each  year  of  his  existence 
exhausted  that  which  had  been  applied  the  preceding  year.  Besides,  why 
declare  that  it  should  be  for  his  natural  life  and  no  longer  1  Are  not 
these  words  "  no  longer,"  a  clear  expression  of  what  was  in  the  testator's 
mind,  and  is  it  not  obvious  that  he  must  have  contemplated  a  series  of 
payments  which  were  only  to  be  interrupted  by  the  death  of  his  son. 
These  considerations  lead  me  to  conclude  that  the  bequest  is  an  annual 
sum  for  maintenance. 

It  is  therefore  ordered  and  decreed,  that  it  be  referred  to  the  Commis- 
sioner to  ascertain  the  amount  due  to  the  plaintiff,  for  any  arrears  in  the 
payment  of  the  said  sum  of  one  hundred  and  fifty  dollars  annually,  to  the 
plaintiff",  allowing  interest  thereon  from  the  end  of  every  year  during 
which  the  same  was  in  arrear,  and  that  so  much  of  the  amount  so  found 
due  be  paid  with  the  costs  of  suit  to  *the  plaintiff's  solicitors  by  ri^■,^. 
the  defendant,  as  the  Commissioner  shall  report  sufficient  to  pay  '- 
their  costs  and  fees,  and  the  remainder  be  paid  to  the  plaintiff;  and  that 
"  the  defendant  be  allowed  the  same  from  the  estate  of  his  testator.  It  is 
further  ordered  and  decreed  that  the  sum  of  one  hundred  and  fifty  dollars 
be  hereafter  paid  annually  by  the  said  executor  into  the  proper  hands  of 
the  said  plaintiff,  to  be  applied  by  him  towards  his  maintenance  and 
support. 

The  defendant  appealed  from  this  decree  on  the  grounds  : 

1.  That  Dr.  S.  W.  Leith,  who  is  a  mere  naked  trustee,  and  admitted 
to  have  no  interest  in  the  event  of  the  suit,  was  rejected  as  a  witness. 

2.  That  defendant  was  not  allowed  to  examine  Mr.  Ford  and  other 
witnesses  to  prove  that  the  testator's  bounty  must  have  failed  because  of 
his  insolvency,  had  he  intended  to  give  the  plaintiff  an  annuity, 

3.  That  the  will  only  gives  the  plaintiff  the  sum  of  one  hundred  and 
fifty  dollars,  and  not  an  annuity  of  that  amount. 

Elmore,  for  the  appellant,  cited  2  John  Ch.  550,  625-6 ;  3  lb,  566  ; 
5  lb.  95  ;  2  Fonb.  4U4,  45T. 

Memminqer,  contra,  on  the  two  first  grounds,  cited  4  M'C.  24  ;  Phil. 
Ev.  474  ;  Westbrook  v.  Harbison,  2  M'C.  Ch.  112.  On  the  last  ground 
he  cited,  2  P.  W.  19;  I  P.  W.  219  ;  2  Ves.  Jr.  481,  note;  2  Ves.  & 
B.  65, 

O'Xeall,  J.  The  two  first  grounds  of  the  motion  may  be  considered 
together  ;  for,  notwithstanding  the  first  ground  presents  a  distinct  question 
whether  Dr.  Leith,  as  the  defendant  in  the  cause,  was  competent,  yet  it 
will  not  be  necessary  to  decide  that  question,  if  we  should  be  of  opinion 
that,  even  if  he  was  a  competent  witness,  still  that  his  testimony,  as_  well 
as  that  of  the  other  witnesses  mentioned  in  the  second  ground,  is  inad- 
missible. 

It  certainly  is  too  late  to  be  now  disputed  that  parol  evidence  is  inad- 
missible to  explain  a  will,  exc.ept  in  the  single  case  where  there  is  a  latent 
ambiguity.     In  such  a  case,  the  ambiguity  is  always  created  by  parol, 


20  SOUTH   CAROLINA   EQUITY   REPORTS.  [*17 

and  may  be  removed  by  parol.  There  is  no  ambiguity  in  the  clause  of 
the  will  under  consideration  ;  the  testator's  words  must  declare  his  inten- 
^,0-1  tion.  They  are  to  be  construed  by  *the  Court  and  if  there  is  any 
-"  doubt  as  to  the  construction,  it  must  be  decided  and  removed  by  legal 
rules,  and  not  by  parol  evidence.  The  testimony  proposed  to  be  given 
by  Dr.  Leith  and  the  other  witnesses,  was  clearly  inadmissible,  and  was 
property  rejected  by  the  Chancellor. 

On  the  third  groundj  involving  a  construction  of  the  clause  of  the 
testator's  will,  under  which  the  plaintiff  claims,  I  agree  with  the  Chan- 
cellor, that  the  plaintiff  is  entitled  to  an  annuity  of  one  hundred  and  fifty 
dollars.  The  reasons  of  the  Chancellor  are  perfectly  satisfactory  to  my 
mind,  and  I  will  add  to  them  a  single  authority  with  a  few  additional 
remarks.  In  Ivy  v.  Gilbert,  2  Pr.  Wms.  19,  the  Lord  Chancellor  said  : 
"  The  natural  meaning  of  raising  a  portion  by  rents,  issues  and  profits,  is 
by  the  yearly  profits."  If  this  be  so,  does  not  the  same  meaning  most 
clearly  apply  to  the  words  used  in  the  will  under  consideration,  "  the 
profits  or  moneys  arising  out  of  my  estate."  They  seem  naturally  to 
imply  a  fund  which  would  not  break  on  the  capital,  such  as  annual  rents 
or  interest.  For  they  must  "arise  out  of,"  spring  from,  or  be  produced 
by  it.  The  sum  bequeathed  is  for  maintenance.  The  legal  import  of 
maintenance  is,  support  from  time  to  time,  and  in  the  case  of  minors, 
whose  maintenance  is  provided  by  trustees,  the  rule  is  well  settled,  that 
the  interest  on  money  at  interest,  or  the  annual  profits  of  an  estate  is  the 
proper  fund  out  of  which  it  is  to  be  allowed.  Construing  the  testator's 
will,  in  reference  to  these  known  rules  of  law,  and  supposing  him  to  have 
employed  his  words  intending  that  they  should  be  explained  and  under- 
stood according  to  their  legal  meaning,  there  can  be  no  difficulty  in  con- 
cluding that  he  intended  to  give  to  his  son,  the  plaintiff,  an  annuity  of 
one  hundred  and  fifty  dollars,  In  the  absence  of  everything  in  the  will 
to  show  that  the  testator  used  words  having  a  fixed  legal  meaning,  in  a 
different  sense,  we  are  compelled  to  conclude,  that  he  used  them  in  their 
proper  legal  sense. 

Is  is  therefore  ordered  and  decreed,  that  the  Chancellor's  decree  be 
affirmed. 

Johnson  and  Harper,  Js.,  concurred. 


*191  *^^o^^^  Kjnloch,  Executor  of  Thomas  Allen,  dec'd,  v.  Samuel 
-*  Hamlin. 

It  is  a  rule  as  well  of  equity,  as  law,  that  a  party  claiming  under  a  contract  with 
mutual  stipulations,  must  show  cither  that  he  has  performed  bis  part  or  some 
legal  excuse  for  not  perfoiming:  and  therefore,  held,  that  a  partner  who  con- 
tributed his  proportion  according  to  the  articles,  for  only  three  yeara  of  the  ten 
for  which  the  partnership  was  to  continue,  the  other  partner  conducting  the 
business  afterwards  on  his  own  means,  was  not  entitled  to  an  account  for  the 
profits,  except  for  the  three  years.  [*19] 

Partners  may  sue  each  other  at  law  for  the  breach  of  any  distinct  engagement  in 
the  partnership  agreement,  and  generally,  adeqiuite  relief  may,  in  such  cases,  be 
thus  obtained;  and  where  this  can  be  done,  equity  will  not  entertain  a  bill  solely 
for  the  breach  of  such  au  engagement.  [*-0] 

Before  Chancellor  De  Saussure. 


*19]  CHARLESTON,    MARCH,    1S34.  21 

Bill  for  account.  The  plaintiff's  testator  and  the  defendant  entered 
into  written  articles  of  partnership  for  the  making  and  selling  brick. 
They  -accordingly  established  a  brick  yard  on  the  premises  of  Allen,  usin"- 
his  soil  and  timber,  and  conducted  the  business  together  for  three  years, 
each  party  contributing  according  to  the  agreement.  The  partnership 
was  to  continue  for  ten  years,  but  after  the  third  year,  Allen  withdrew 
his  quota  of  labor,  and  bestowed  no  farther  attention  to  it.  ITanilin, 
however,insisted  to  go  on  and  continued  the  business  until  the  end  of  the 
term,  using  largely  of  the  timber  and  soil.  Allen  dying,  his  executor 
filed  this  bill  for  an  account  of  the  partnership  profits,  in  which  he  claims, 
that  after  making  due  allowance  to  Hamlin  for  his  extra  labor  and  atten- 
tion, the  wood  and  clay  and  use  of  the  premises  constituted  such  a  con- 
tribution, as  entitled  Allen  to  share  in  the  profits  during  the  whole  ten 
years,  or  in  any  event  that  he  is  entitled  to  compensation  for  the  use  and 
occupation  of  the  premises,  and  for  the  w^ood  consumed  in  burning  the 
bricks. 

The  Chancellor  held  that  the  plaintiff  could  not  maintin  his  bill  except 
for  the  three  years,  and  refused  to  allow  an  account  for  the  remainder  of 
the  term,  or  any  compensation  for  the  use  of  the  premises,  or  the  wood 
consumed.     From  this  decree  the  plaintiff  appealed. 

Earle,  J.,  (sitting  for  Harper,  J.)  Whenever  a  party  comes  into  a 
Court  of  law,  to  claim  damages  for  the  breach  of  an  executory  agree- 
ment, containing  mutual  and  dependent  stipulations,  he  must  show  that 
he  has  performed  his  part,  or  that  he  has  been  ready  and  willing  to  per- 
form, and  has  been  prevented  by  the  other  party,  or  some  other  sufficient 
legal  excuse  for  not  performing.  I  apprehend  a  different  rule  cannot 
prevail  in  equity.  It  is  a  rule  of  common  sense  and  common  justice,  and 
therefore  a  rule  of  both  law  and  equity.  For  the  three  years,  during 
which  the  plaintiff's  *testator  contributed  his  proportion  of  the  labor,  rj^.^n 
and  otherwise  performed  his  portion  of  the  agreement,  he  is  entitled  ^ 
to  an  account,  as  the  Chancellor  has  decreed.  But  in  relation  to  the 
other  seven  years,  as  he  has  well  remarked,  "  the  claim  for  an  account  is 
an  awkward  one."  He  comes  into  equity,  with  an  ill-grace,  to  claim 
compensation  on  a  contract  which  he  utterly  renounced  and  repudiated, 
to  claim  an  account  of  the  profits  of  a  concern  which  he  forthwilli  al^an- 
doned  when  he  supposed  it  would  be  a  losing  business.  It  may,  however, 
have  turned  out  otherwise ;  and  he  has  no  right  to  withdraw  from  the 
partnership.  It  is  true,  he  had  no  right  to  dissolve  the  partnership,  so 
far  as  the  rights  of  the  defendant  were  concerned,  nor  could  he  exonerate 
himself  from  his  liability  to  others  by  any  act  of  his  own.  But  surely  it 
was  competent  for  him  to  abandon  his  interest  in  the  concern,  to  forfeit 
his  share  of  the  profits ;  and  I  think  he  has  done  this,  by  refusing  to  }>er- 
form  after  the  three  first  years,  every  stipulation  contaiiicd  in  the  agree- 
ment, by  withdrawing  every  portion  of  the  capital  he  was  to  contribute, 
except  the  wood  and  the  use  of  the  soil ;  thus  depriving  the  defendant  of 
all  the  benefit  he  might  have  derived  from  the  use  of  that  capital,  and  to 
that  extent  diminishing  his  profits.  To  allow  him  or  his  representative, 
the  plaintiff,  to  claim  an  account  and  ])articipatiou  of  the  profits,  would 
be,  as  the  Chancellor  expresses  it,  "to  pay  a  premium  fur  breaking  a 
contract." 

Vol.  I._25 


22  •         SOUTH   CAROLINA   EQUITY   REPORTS.  [*20 

By  this  bill,  however,  compensation  is  farther  claimed,  for  the  use  and 
occupation  of  the  land,  and  for  the  wood  consumed  in  burning  the  bricks. 
And  first  in  relation  to  the  land  merely,  or  the  use  of  the  soil  consumed 
and  occupied  in  the  business. 

[His  honor  here  goes  into  an  argument,  which  it  is  unnecessary  to 
state,  showing  that  according  to  the  contract,  the  plaintiff  is  not  entitled 
to  compensation  for  the  mere  occupation  of  the  premises,  or  the  use  of 
the  soil ;  and  then  proceeds.] 

Under  the  agreement,  therefore,  the  plaintiff  can  claim  no  other  com- 
pensation than  that  agreed  upon,  to  wit :  "  iifty  cents  per  cord  for  one 
half  of  the  wood  consumed,"  which  Hamlin  was  to  pay,  and  for  this  it 
is  contended,  that  he  is  entitled  to  maintain  this  bill  for  an  account  and 
relief.  I  think  not.  It  is  not  every  agreement  that  constitutes  a  part- 
nership, which,  when  broken,  entitles  the  party  injured  to  compensation 
5^j,,-i  or  relief  in  equity.  It  is  only  for  *an  account  of  settlement  on  dis- 
"  ^  solution,  that  the  aid  of  that  Court  is  necessary  ;  and  this,  not  merely 
on  the  ground  that  they  are  partners,  but  because  of  the  trust  and  confi- 
dence reposed,  and  the  necessity  of  a  discovery.  But  a  Court  of  law  is 
generally  competent  to  give  adequate  relief  in  cases  of  the  breach  of  par- 
ticular stipulations  ;  it  cannot  enforce  specifically,  but  can  compensate  in 
damages.  Partners  may  sue  each  other  at  law  for  the  breach  of  any  dis- 
tinct and  positive  engagement  contained  in  their  agreement,  as  to  account 
annually,  or  to  adjust  and  to  make  a  final  settlement  of  the  joint  concerns 
on  dissolution  :  then,  a  breach  by  one  will  vest  a  right  of  action  which 
may  be  enforced  at  law  upon  the  covenant,  and  adequate  damages 
recovered.  Gow  on  Part.  106,  107  ;  2  T.  R  483,  and  in  note,  "and  the 
same  rule  applies  to  every  other  species  of  lawful  covenant,  by  which 
parties  reciprocally  and  severally  bind  themselves,  inter  se,  to  the  per- 
formance of  any  particular  act  or  thing."  Where  A.  agreed  to  supply 
B.  with  the  manuscript  of  a  work  to  be  printed  by  the  latter,  the  profits 
of  which  were  to  be  equally  divided  between  them,  it  was  held  that  B. 
might  maintain  an  action  against  A.  for  refusing  to  supply  manuscript 
after  part  of  the  work  had  been  printed.  Gow.  108  ;  2  B.  &  P.  131 ; 
Gow.  109;  2  Stark.  K  P.  C.  107  ;  3  Johns.  Ch.  Ca.  262.  Under  the 
agreement  in  question,  the  plaintiff's  testator  was  entitled  to  maintain  an 
action  at  law  for  the  value  of  the  wood  consumed,  at  the  rate  agreed  on, 
supposing  the  partnership  to  have  continued ;  and  there  could  have  been 
no  occasion  to  go  into  equity,  if  the  defendant  had  accounted  for  the 
profits.  It  is  a  separate  and  distinct  engagement,  independent  of  the 
general  liability  to  account,  arising  from  the  relation  of  partner.  On  a 
bill  to  account,  if  the  partnership  had  continued,  it  is  true  that  item  or 
claim  might  have  been  brought  in,  on  final  settlement  of  the  claims  of 
each.  But  the  question  is,  can  the  plaintiff's  testator,  after  having  for- 
feited his  claim  to  'the  profits,  and  his  rights  to  an  account,  maintain  a 
bill  for  compensation  under  any  part  of  the  agreement  ?  And  for  which, 
if  entitled  to  any,  he  has  plain  and  adequate  remedy  at  law  ?  According 
to  the  view  already  taken,  he  cannot  maintain  this  bill  to  account,  except 
for  the  three  years  ;  and  if  he  cannot  maintain  this  bill  to  account,  on  the 
ground  of  partnership,  he  cannot  maintain  it  on  the  ground  of  contract 
under  the  articles.  The  Court  cannot,  after  the  three  years,  allow  him 
the  aid  of  equity,  to  enforce  one  of  the  covenants  or  stipulations  of  an 


*21]  CHARLESTON,  MARCH,  1834.  23 

agreement,  *which  he  has  renounced,  and  refused  to  comply  with. 
He  cannot  renounce  and  enforce  at  the  same  time.  It  would  be  con-  L'^''^ 
trary  to  all  principle  and  all  precedent.  But  setting  aside  the  af^ree- 
ment,  it  is  contended  that  he  is  entitled  to  be  paid  for  the  wood  consumed 
and  although  he  might  recover  at  law,  if  he  knew  the  quantity,  yet,  as  he 
does  not,  and  the  defendant  does,  he  may  maintain  this  bill.  I  think  not. 
That  would  be  a  very  pliable  principle  of  equity  jurisdiction.  Without 
the  agreement,  he  is  entitled  to  the  aid  of  equity  in  this,  as  in  other  cases 
where  discovery  is  necessary  in  aid  of  the  jurisdiction  of  the  Court  of 
law.  But  this  case  does  not  stand  upon  that  footing ;  nor  can  it  be 
maintained  now,  for  that  purpose.  This  Court  will  not  now  decide,  that 
the  plaintiff  can;?o;;  recover  at  law,  for  that  question  is  not  necessarily 
before  us.  If  the  plaintiff  thinks  that  his  testator  was  entitled  to  com- 
pensation, under  or  without  the  agreement,  for  the  wood  consumed,  let 
him  bring  his  action  at  law  on  the  express  contract,  or  on  a  quantum 
valehat,  and  afford  the  defendant  an  opportunity  to  discount  the  damages 
he  may  have  sustained  in  consequence  of  the  testator's  breach  of  all  the 
covenants  to  be  performed  on  his  part. 

Johnson  and  O'Xeall,  concurred. 

Hunt,  for  the  appellant. 


Edw'd  C.  Walker,  Adm'r  of  Robt.  May,  vs.  John  May,  and  others. 

Tlie  grant  of  administration  has  relation  to  the  death  of  the  intestate,  and  legalizes 
the  intermediate  acts  of  the  administrator;  and  a  judgment  against  an  executor 
de  son  tort,  -will  be  valid  agninst  him  after  he  has  regularly  administered,  and 
binds  the  estate,  unless  fraud  or  collusion  be  shown.  The  administrator  in  such 
case  will  be  estopped  from  denying  his  former  executorship.  [*23] 

The  plaintiff  in  this  case,  as  the  administrator  of  Robert  May,  filed  his 
bill  in  the  Court  of  Chancery,  for  Colleton  district,  against  the  defendant, 
to  set  aside  the  sale  of  certain  negroes,  and  for  an  account  of  their  hire. 
At  January  Term,  1831,  Chancellor  De  Saussure  decreed  the  sale  to  be 
illegal  and  void,  and  ordered  the  negroes  to  be  sold  by  the  Commissioner, 
and  that  it  be  referred  to  him  to  examine  and  report  the  debts  against 
Robert  May  In  pursuance  of  this  order,  the  Commissioner  sold  the 
negroes,  for  an  amount  which,  with  the  account  for  their  hire,  exceeded 
the  debts.  On  the  reference  to  ascertain  the  debts,  a  debt  was  claimed 
in  favor  of  John  King.  To  establish  the  debt,  the  record  of  a  case  in 
the  Court  of  Common  Pleas  was  produced,  from  which  it  appeared 
*that,  in  1825,  King  brought  suit  against  Margaret  May,  (the  ^^g 
widow  of  Robert  May,)  and  Edward  C.  Walker,  (the  present  L 
plaintiff,)  as  executrix  and  executor  de  son  tort,  on  a  promissory  note 
for  $200,  payable  on  demand,  and  dated  in  1817,  and  judgment  was 
obtained  and  execution  issued  in  1821.  Margaret  May  afterwards  died, 
and  in  1829,  Edward  C.  Walker  took  out  letters  of  administration  on 
the  estate  of  Robert  May,  and  it  is  admitted  that  he  is  now  insolvent. 
The  Commissioner  rejected  the  demand,  on  the  groimd  that  the  note  was 


24  SOUTH    CAROLINA   EQUITY    REPORTS.  [*23 

barred  by  the  statute  of  limitations  in  the  lifetime  of  Robert  May,  and 
the  judgment  against  his  executors  de  son  tort,  he  held  was  not  valid,  so 
as  to  re-establish  it. 

The  creditor,  King,  claimed  to  have  his  debt  paid  out  of  the  assets  in 
the  hands  of  the  Court,  and  excepted  to  the  Commissioner's  report, 
alleging  error  in  his  decision.  At  January  Term,  1834,  Chancellor 
Johnston  overruled  the  exceptions,  and  confirmed  the  report,  and  from 
his  decree  an  appeal  was  taken. 

Dunhin,  for  the  appellant,  argued  that  the  subsequent  administration 
of  Walker  had  relation  back  to  the  death  of  his  intestate  and  legalized 
all  his  previous  acts ;  and  that  he  was  estopped  from  denying  the  validity 
of  the  judgment.  He  cited  and  relied  on  1  Com.  Dig.  466,  tit  Ex'ors 
and  Adm'rs;  1  Esp.  Dig.  pt.'  2,  p.  91;  2  St.  1106,  Vaughn  v.  Brown; 
2  Tent.  180 ;  1  Com.  Dig.  503  ;  8  John.  127  ;  1  Saund.  265,  note  2. 

Elmore,  contra,  cited  Anderson  v.  Belcher,  1  Hill,  246.  M'JS^eil  v. 
Jones,  lb.  84. 

Harper,  J.  It  appears  to  me  that  the  only  material  question  in  the 
case  is,  whether  the  judgment  obtained  by  John  King  against  Margaret 
May  and  Edward  C.  Walker,  as  executors  de  aon  tort  of  Robert  May,  is 
valid  as  against  Edward  C.  Walker,  now  administrator  of  Robert  May, 
and  binds  the  estate  in  his  hands.  It  is  agreed  that  Margaret  May  is 
dead,  so  that,  in  any  point  of  view,  Edward  C.  Walker,  as  survivor,  is 
alone  subject  to  be  sued.  If  it  be  a  valid  judgment  against  the  adminis- 
trator, there  can  be  no  question  respecting  the  statute  of  limitations. 

I  think  the  authorities  referred  to  on  the  part  of  the  appellant,  suflB- 
^g,-|  ciently  establish  that  it  must  be  regarded  as  valid.  The  doctrine* 
*^  J  inferred  from  the  case  of  Vaughan  v.  Brown  (Str.  1105)  is,  that 
the  grant  of  administration  has  relation  back  to  the  death  of  the  intes- 
tate, and  legalizes  the  intermediate  acts  of  the  administrator.  In  that 
case  the  defendant  was  sued  as  executor,  and  claimed  to  retain  for  a 
judgment  from  the  deceased  in  his  lifetime  to  himself.  It  was  replied 
that  he  was  executor  de  son  tort,  and  he  rejoined  administration  granted 
to  himself  j^uis  darrien  continuance.  So,  in  1  Saund.  262,  n.  2,  it  is 
said  that  a  subsequent  administration  legalizes  acts  which  were  tortious 
at  the  time.  The  same  doctrine  is  recognized  in  the  case  of  Rattoon  v. 
Overacker,  8  Johns.  97,  and  by  this  Court  in  Witt  v.  Elmore,  2  Bail. 
595.  In  the  latter  case,  it  is  said  the  effect  of  the  rule  is  to  legalize  the 
acts  done  as  executor  de  son  tort,  both  for  and  against  him.  Suppose 
an  action  of  debt  to  have  been  brought  on  the  judgment  against  Edward 
C.  Walker,  as  survivor,  a  recovery  must  have  been  had.  Supposing  it 
necessary  to  describe  as  executor,  in  conformity  to  the  former  judgment, 
he  would  have  been  estopped  by  the  record  to  deny  himself  executor ; 
and  then  suppose  an  execution  issued  on  the  last  judgment  and  enforced 
the  effects  of  the  testator  in  his  hands,  how  could  the  enforcement  of  that 
execution  have  been  restrained  ? 

The  administrator  himself  would  have  been  estopped.  He  represents 
all  creditors  and  distributees,  and  they  are  bound  by  his  acts,  unless  in 
cases  of  fraud  or  collusion.  The  effects,  in  the  present  instance,  are  not 
in  the  hands  of  the  administrator ;  but  he  is  entitled  to  all  funds  of  the 


*24] 


CHARLESTON,    APRIL,    1834.  25 


estate  until  all  debts  are  paid,  nor  until  then  can  the  distributees  be  enti- 
tled to  anything.  It  is  said,  an  executor  is  not  bound  to  plead  the  statute 
of  limitations.  Toll.  Law  of  Exor's,  343-429  ;  Ex  parte  Dewducy,  15 
Ves.  498.  However  this  may  be,  (and  perhaps  in  some  instances  it  may 
be  questionable,)  in  this  case  he  has  not  pleaded  it ;  there  is  a  jiido-mcnt 
against  hina  which  binds  him  and  the  estate.  If  he  has  been  guilty  of  a 
neglect  of  duty  in  this  matter,  the  remedy  of  those  interested  in  the  estate 
must  be  against  him  on  his  official  bond.  The  motion  is  therefore 
granted,  and  the  exceptions  sustained. 

Johnson  and  O'Neall,  Js.,  concurred. 


*The  Bank  vs.  the  Executors  of  W.  W.  Trapier,  and  others.    [*25 

The  Commissioner  may,  under  the  order  of  the  Court,  make  sales  of  land  lying  in 
another  district.  [*25] 

W.  W.  Trapier  lived  and  died  a  resident  of  Georgetown  district.  His 
executor  and  some  of  his.  creditors  and  legatees  are  residents  of  that  dis- 
trict ;  some  of  his  creditors  and  legatees  are  resident  in  Charleston  dis- 
trict. W.  W.  Trapier  having  mortgaged  his  plantation,  the  bill  in  this 
case  was  filed,  and  the  proceedings  were  submitted  to  Chancellor  De 
Saussure,  by  consent  of  parties,  in  May  Term  of  the  Court  of  Charleston, 
and  an  order  was  entered,  also  by  consent  of  parties,  that  the  mortgage 
shonld  be  foreclosed,  and  the  mortgaged  premises,  sold  in  Georgetown 
in  January,  by  James  W.  Gray,  Esq.,  Commissioner  in  Equity  for 
Charleston  district. 

A  motion  was  made  at  the  instance  of  Mr.  Heriot,  the  Commissioner 
in  Equity  for  Georgetown,  before  Chancellor  De  Saussure,  to  modify  this 
order  and  direct  the  sale  to  be  made  by  the  Commissioner  in  Equity  for 
Georgetown  district,  which  motion  was  refused. 

An  appeal  was  taken  from  this  decision,  on  the  ground  that  the  Act 
of  Assembly  of  1191  prescribes  that  the  Commissioners  of  the  several 
districts  shall  make  the  sales  within  those  districts,  and  the  consent  of 
the  suitors  should  not  divest  the  relator  of  a  privilege  given  him  bj  law. 

Dunkin,  for  the  appellant. 

Grimke,  contra. 

Johnson,  J.  There  does  not  appear  to  me  to  be  any  reasonable 
foundation  for  this  motion.  By  the  Act  of  1191,  (1  Brev.  Dig.  Tit.  Com. 
of  Equity,  sec.  41,)  the  Commissioners  in  Equity  for  the  several  districts 
are  required  to  attend  the  sittings  of  the  Courts,  and  to  take  and  enter 
down  the  decrees,  orders  and  minutes  thereof,  &c.,  "and  shall  make  all 
sales  under  the  decree  of  the  said  Court."  It  contains  no  reference  to 
the  place  where  the  property  is  situated  or  found,  and  I  can  see  nothing 
in  the  nature  of  the  service  which  would  restrict  the  authority  of  the 
Commissioner  to  that  which  is  found  or  situate  in  his  own  district.  On 
the  contrary,  there  are  many  reasons  why  the  sales  should  be  made  by 


26  SOUTH   CAROLINA   EQUITY   REPORTS.  1*25 

the  Commissioner  of  the  Court  in  which  the  decree  is  entered.  The 
returns  of  the  sales  and  the  accounts  must  be  made  there,  and  to  that 
*9p-|  *  Court  its  Commissioner  is  directly  responsible  for  the  manner  in 
"  J  which  he  has  discharged  his  duty. 

The  usage  of  the  Court,  spoken  of  by  the  Chancellor,  is  an  irresistible 
argument  in  favor  of  tliis  construction  ;  and  besides  that,  the  consent  of 
the  parties  is  in  itself  conclusive.  If  they,  themselves,  thought  proper  to 
make  a  private  agent  to  sell  the  property,  the  Court  could  not  control 
them  in  it.  Tliey,  at  least,  would  be  bound  by  his  acts,  and  no  one  else 
is  interested,  whether  he  acts  well  or  ill. 

The  motion  is  therefore  dismissed. 

O'Neall  and  Harper,  Js.,  concurred. 


Mary  and  A.  M.  Sherman  vs.  Justus  Angel,  Executor. 

On  a  bill  against  an  executor  to  account  for  his  administration,  he  "will  not  be  allowed 
a  credit  in  making  up  the  accounts,  for  a  counsel  fee  paid  by  him  in  the  case  for 
litigating  questions  in  which  he  was  individually  interested  and  which  were  de- 
cided against  him;  nor  does  it  vary  the  case  that  some  of  the  credits  claimed  by 
him,  were  contested  and  adjudged  in  his  favor.  [*-0] 

Bill  for  account.  On  the  reference  before  the  Master  to  make  up  the 
accounts,  the  defendants  claimed  a  credit  of  two  hundred  dollars,  as  a 
counsel  fee  paid  by  him  for  litigating  the  question  made  in  this  case. 
The  Master  refused  to  allow  it.  Exception  being  taken  to  the  report. 
Chancellor  De  Saussure  sustained  the  exception,  and  an  appeal  was 
taken  from  his  decision. 

JonNsox,  J.  There  is  certainly  much  good  feeling  in  the  view  which 
the  Chancellor  has  taken  of  this  case;  and  if  it  was  a  case  in  which  the 
Court  could  exercise  any  discretion,  the  defendant  should  have  the  benefit 
of  it ;  but  the  rights  of  the  parties  appear  to  me  to  depend  on-  a  rule  of 
right,  over  which  the  Court  has  no  control.  The  defendant,  by  neglect- 
ing to  make  regular  returns  of  his  administration  to  the  Ordinary,  and  to 
account  with  the  plaintiffs,  has  rendered  this  suit  necessary — the  ])laintififs 
had  no  other  means  of  coming  at  their  rights.  The  principal  litigation 
in  the  cause  arose  out  of  his  claim  to  be  paid  for  the  board  and  lodging 
of  the  plaintiffs,  and  to  be  let  into  a  distribution  of  the  estate  limited 
over  to  the  children  of  his  wife's  mother,  and  both  these  claims  were 
decided  against  him,  and  he  now  asks  to  be  reimbursed  money  paid  to 
counsel  for  vindicating  these  claims — and  surely  the  Court  would  not  be 
*2'71  J'^^''^'-^^'^^^  ^'^  compelling  the  plaintiffs  to  pay  money*  which  he  has 
voluntarily  given  to  another,  to  their  prejudice,  rather  than  their 
advantage. 

It  is  said  that  some  litigation  grew  out  of  one  of  the  credits  claimed 
by  the  defendant  in  the  account  which  was  objected  to  by  the  plaintiffs, 
and  which  was  adjudged  for  the  defendant,  and  this  is  claimed  as  a 
ground  on  which  the  defendant  ought  to  be  reimbursed  his  expenses. 


*27]  CHARLESTON,    APRIL,    1834.  27 

The  bill  was  for  an  account  from  the  defendant,  and  it  was  not  oidy  liis 
duty  to  render  a  correct  account,  but  the  right  of  the  plaintiffs  to  contest 
every  item,  and  insist  on  its  being  proved  and  substantiated  accordina;  to 
the  forms  of  law.  They  have  not,  therefore,  been  guilty  of  any  wrong, 
and  ought  not  to  be  charged  with  the  errors  or  misfortunes  of  the 
defendant. 

It  is  therefore  ordered  that  the  decree  of  the  Circuit  Court  be  reversed, 
and  that  the  report  of  the  Master  be  affirmed  and  made  the  judgment  of 
the  Court. 

Harper,  J.,  concurred. 

Grimke,  for  the  appellants. 

Petigru,  contra. 


Fnion  Bank  vs.  A.  Y.   Toomer, 

General  rules  for  determining  whetlier  conveyances  be  fraudulent,  and  the  cases  on 
that  subject  considered.  [*^!1] 

"When  a  consideration  is  paid  in  order  to  avoid  the  conveyance,  the  Court  must  be 
satisfied  of  an  actual  fraudulent  intention,  and  the  preponderance  of  authority 
seems  to  be,  that  the  purchaser  must  be  a  party  to  the  fraud.  [*?)2] 

S.  H.,  being  infirm  and  unable  to  manage  her  business,  conveyed  her  land  and  most 
of  her  slaves  to  the  defendant,  he  paying  certain  debts,  (which,  after  inquiry,  were 
believed  to  be  all  she  owed,)  and  an  annuity  for  her  life  equal  to  the  appraised 
value  of  the  property  deducting  the  debts:  after  the  death  of  S.  H.  judgment  was 
obtained  against  her  executors  on  a  bond  executed  by  her  as  surety,  and  which 
existed  before  the  conveyance:  on  a  bill  by  the  judgment  creditor  to  set  aside 
the  conveyance  on  the  ground  of  inadequacy  of  price  and  charging  that  it  was 
fraudulent  as  to  creditors;  there  being  no  evidence  that  the  defendant  knew  of  this 
debt,  or  that  fraud  was  intended,  it  was  held  that  the  conveyance  was  valid. 
[*C3] 

Charleston,  May  Term,  18.33. — Before  Chancellor  De  Saussure,  who 
pronounced  the  following  decree  : 

The  oliject  of  the  bill  in  this  case  is  to  have  the  benefit  of  a  judgment 
at  law,  on  a  bond  of  the  late  Mrs,  Sebina  Hall,  and  for  that  purjjo.'^o  to 
set  aside  certain  sales  and  conveyances  of  lands  and  negroes,  made  and 
executed  by  said  Mrs.  Hall  to  Dr.  Toomer,  the  defendant,  prior  to  said 
judgment,  on  the  ground  of  fraud  and  inadequacy  of  price.  There  were 
two  distinct  questions  made  at  the  argument  of  the  cause,  for  the  con- 
sideration of  the  Court.  1.  It  was  insisted  that  the  bond  executed  by 
Mrs.  Hall  to  C.  B.  Cochran  (on  which  the  judgment  has  been  ol)taincd) 
and  by  him  assigned  to  the  Union  Bank,  as  a  security  for  a  bond  given  by 
Jacint  Laval  to  C.  B.  Cochran,  and  assigned  to  the  Bank,  *was  r^cf^ 
obtained  from  her  by  imposition  and  practices  on  her  weakness  and  L 
confidence  in  Laval,  and  is  not  sustainal)le  in  a  Court  of  Equity.  2. 
That  if  the  bond  and  judgment  thereon  could  l)e  sustained,  it  would  not 
affect  the  purchase  made  by  Dr.  Toomer,  the  defendant,  from  Mrs.  Hall, 
which  was  bona  fulc,  for  valuable  consideration,  and  without  notice  of 
the  bond  of  Mrs.  Hall. 


28  SOUTH    CAROLINA    EQUITY    REPORTS.  [*28 

Evidence  to  a  great  exteirt  was  given  at  the  hearing  of  tlie  cause, 
applicable  to  both  branches  of  the  case.  [The  Chancellor  here  went 
into  an  examination  of  the  first  question,  and  after  remarking  ou  the 
evidence,  concludes,  that  although  the  bond  is  not  entirely  free  from  the 
suspicion  of  being  unfairly  obtained,  yet  as  a  judgment  at  law  has  been 
obtained  on  it,  and  the  executors  of  Mrs.  Hall  are  not  parties  to  this 
case  seeking  to  set  aside  the  judgment,  he  was  bound  to  regard  it  as 
valid, — and  then  proceeds  :] 

The  second  question  is,  whether  the  Court  will  set  aside  the  convey- 
ances of  real  and  personal  estate,  made  by  Mrs.  Hall  to  Dr.  Toomer,  the 
defendant,  to  let  in  the  plaintiff  and  subject  that  property  to  the  payment 
of  the  bond  of  Mrs.  Hall.  The  plaintiff  does  not  pretend  that  there  was 
any  lien  on  the  property  conveyed  to  Toomer  ;  no  judgment  was  obtained 
on  the  bond  until  some  time  after  the  sale  and  conveyance  to  Toomer. 
There  is  no  proof  that  the  purchase  was  made  by  Toomer  to  aid  Mrs. 
Hall  in  protecting  the  property  in  question  against  her  liability  on  this 
bond  in  particular ;  it  does  not  appear  that  he  knew  of  the  existence  of 
this  bond.  The  question  then  is — "Was  this  such  a  conveyance  by  Mrs. 
Hall  to  Toomer,  as  was  fraudulent  and  void  as  to  creditors  ?  The  cir- 
cumstances of  the  case  were  these :  Mrs.  Hall,  a  widow  lady,  advanced 
in  life,  of  infirm  health,  not  skilled  in  the  management  of  property,  being 
desirous  of  paying  some  debts  and  having  a  certain  regular  income, 
applied  to  Dr.  Toomer  to  be  the  purchaser  of  her  lands,  and  the  greater 
part  of  her  slaves,  (reserving  twenty).  He  was  the  son  of  her  first  hus- 
band by  his  first  wife ;  part  of  the  estate  was  derived  from  his  kindness 
to  her.  Dr.  T.  had  behaved  so  properly,  respectfully  and  usefully  to  her, 
that  she  had  great  regard  for  him,  aud  she  confided  in  his  kind  treatment 
of  the  slaves  she  was  about  to  sell,  about  which  she  was  solicitous. 
Undoubtedly,  though  a  transaction  in  which  she  wished  to  get  a  fair 
value  for  the  property,  there  was  a  feeling  of  kindness  towards  Dr. 
Toomer,  mingling  itself  in  the  transaction ;  but  it  was  considered  a  busi- 
^c)n-]  ness  transaction,  in  which  fair  dealing  *was  to  be  observed.  Dr. 
-^  Toomer  hesitated  and  came  into  the  measure  slovv^ly  and  apparently 
with  reluctance.  When  he  acquiesced,  appraisers  of  the  property  were 
named  :  forty-eight  negroes  and  the  land  (the  latter,  it  seemed,  was 
thrown  in  at  a  nominal  price)  were  appraised  about  $19,000.  On  the  basis 
of  their  estimate  a  contract  was  made.  Respectable  counsel  were  em- 
ployed ou  the  part  of  Mrs.  Hall  to  attend  to  her  interests,  and  indeed 
everything  was  done  which  caution  and  a  determination  that  the  transac- 
tion should  be  well  considered  and  fairly  conducted,  required.  There  is 
no  doubt  of  the  fairness  of  the  transaction,  and  Mrs.  Hall,  though  infirm 
and  weak,  was  more  competent,  with  the  aid  of  counsel  and  good  ap- 
praisers, to  form  a  sound  opinion  on  a  subject  proposed  by  herself  with- 
out solicitation  of  Dr.  Toomer,  and  the  papers  deliberately  read  to  her, 
in  a  case  where  she  was  to  get  a  valuable  consideration,  than  she  was  to 
bind  herself  without  consideration,  as  a  surety  for  a  large  debt,  without 
the  advice  or  presence  of  any  friends,  (who  were  carefully  avoided,)  and 
for  which  her  estate  has  been  held  to  be  bound.  Having  ascertained  that 
the  business  of  the  sale  to  Toomer  was  conducted  fairly  and  deliberately, 
and  with  full  knowledge  on  the  part  of  Mrs.  Hall,  the  only  question  which 
remains  for  consideration  is,  whether  the  price  was  fair  and  adequate. 


*29]  CHARLESTON,    APRIL,    1834.  29 

On  tins  question  the  decided  cases  have  made  or  sustained  certain 
clear  principles.  The  absolute  right  of  an  owner  of  property  is  such, 
that  he  may  give  it  away,  without  any  valuable  consideration,  if  he  choose 
to  do  so,  without  prejudice  to  the  rights  of  creditors,  and  so  he  may 
choose  to  sell  it  for  a  price  short  of  its  real  value,  and  no  person  has 
authority  to  question  his  acts  and  dispositions.  The  adequacy  or  inade- 
quacy of  price  is  a  question  for  his  own  decision,  and  he  may  at  his 
pleasure  permit  considerations  of  favor  and  kindness  to  mingle  in  the 
transaction.  In  a  sale,  this  power  of  an  owner  is  so  complete  that  inade- 
quacy of  price  alone  is  not  considered  sufficient  to  set  aside  a  sale,  unless 
the  inadequacy  be  so  enormous  as  to  shock  the  common  sense  and  the 
common  feeling  of  right  among  men,  when  it  then  raises  the  presumption 
of  fraud  ;  or  unless  the  transaction  itself  be  accompanied  by  such  circum- 
stances as  show  great  imbecility  or  ignorance  on  the  one  side,  and  con- 
trivance and  fraud  on  the  other.  In  the  case  before  us,  there  are  no  such 
circumstances  to  lead  the  mind  even  to  suspect  fraud  or  imposition.  As 
to  the  price,  it  seems  to  be  fair.  The  *payment  of  considerable  r^on 
debts,  by  a  schedule  furnished  by  Mrs.  Hall,  after  diligent  inquiry  L 
by  herself  and  her  friends,  to  the  amount  of  upwards  of  $4000,  and  the 
stipulation  to  pay  her  an  annuity  of  $1060  during  her  life,  actually 
placed  her  in  a  more  eligible  situation  than  she  was  before,  and  made  her 
more  easy  aud  comfortable. 

The  annuity  was  paid  during  her  life,  which  lasted  six  years,  and  made 
an  amount  which,  with  the  debts  of  Mrs.  H.  assumed  and  payed  by  Dr. 
T.,  made  it  a  fair  price  and  reasonable  bargain.  It  was  true,  as  was 
urged  on  the  argument,  that  Mrs,  H.  might  have  died  within  a  year,  or 
a  shorter  time  after  the  contract,  when  little  or  nothing  had  been  paid  on 
the  annuity,  and  then  the  price  of  the  estate  sold  would  have  been  very 
low.  But  it  is  equally  true,  that  Mrs.  H.  might  have  lived  twenty  years, 
and  then  the  price  paid  would  have  been  very  high.  Both  parties  ran 
this  risk,  and  it  formed  part  of  their  contract.  There  is,  then,  no  ground 
to  impeach  the  fairness  of  the  sale  to  Toomer,  and  as  his  purchase  was 
made  and  completed  before  any  lieu  had  been  obtained  by  C.  B.  Cochran 
or  the  Union  Ijank,  by  judgment  on  her  bond,  it  is  not  subject  to  the 
subsec(uent  judgment.  It  is  therefore  ordered  aud  decreed,  that  the  bill 
of  the  plaintilf  be  dismissed  with  costs  of  suit. 

An  appeal  was  taken  from  this  decree,  on  the  grounds  : 

1.  That  the  conveyance  of  the  property  by  Mrs.  Hall  to  Dr.  Toomer, 
for  a  life  annuity,  was  not  a  sale  for  a  valuable  consideration,  as  against 
a  bond  creditor  existing  at  the  time  of  the  conveyance. 

2.  That  such  a  deed  is  void  by  the  Stat.  13  Eliz.,  made  for  the  relief 
and  protection  of  creditors. 

3.  That  Mrs.  Hall,  taking  back  an  annuity  to  the  annual  value  of  the 
estate,  with  security  on  the  property  itself  for  its  payment  annually,  was 
tantamount  to  a  continuance  in  possession,  a  circumstance  which  entitle 
creditors  to  relief  in  Chancery. 

Dunkin,  for  the  appellant. 

Petigru,  contra. 


30  SOUTH   CAROLINA   EQUITY   REPORTS.  [*30 

Harper,  J.  We  do  not  tliiuk  it  necessary  to  investigate  the  first 
general  question  made  in  the  Chancellor's  decree  respecting  the  validity 
of  the  bond  executed  by  the  deceased  Mrs.  Hall  to  Cochran  for  the 
^o-i-i  security  of  Laval's  debt,  on  which  the  plaintiflFs  *have  obtained 
-J  judgment.  Admitting  it  to  be  valid,  we  do  not  think  that  the  con- 
veyance by  Mrs.  Hall  to  the  defendant  can  be  impeached. 

The  general  rules  of  law  on  the  subject  cannot  be  questioned.  Under 
the  Stat.  13  Eliz.  C.  5,  as  well  as  at  common  law,  a  conveyance  made  by 
a  person  indebted,  with  intent  to  defraud  h-is  creditors,  is  void.  With 
respect  to  the  circumstances,  however,  which  shall  be  sufficient  evidence 
of  the  fraudulent  intention,  there  is  a  diversity.  If  a  conveyance  merely 
voluntary  be  made  by  a  person  indebted,  this  has  generally  been  held 
sufficient  of  itself,  to  establish  the  fraudulent  character  of  the  conveyance. 
But,  if  it  be  upon  consideration,  and  even  upon  full  and  adequate  con- 
sideration, as  in  Lowry  v.  Pinson,  2  Bail.  324,  still,  if  it  appear  that  it 
was  with  the  actual  fraudulent  intention  to  defeat  creditors,  it  will  still 
be  void.  If  it  was  upon  very  inadequate  consideration,  this  will  be  one 
of  the  circumstances  from  which  the  actual  fraudulent  intention  may  be 
inferred.  But,  however  inadequate  the  consideration,  if  the  transaction 
be  bona  fide,  it  cannot  be  impeached.  This  seems  to  be  the  sum  of  the 
authorities  on  the  subject. 

This  would  appear  from  the  proviso  in  the  Stat.  18  Eliz.,  that  nothing 
therein  contained  shall  extend  to  any  conveyance  made  "  upon  good  con- 
sideration and  bona  fide,^^  to  any  persons  "not  having  at  the  time  of  such 
conveyance  or  assurance  to  them  made,  any  manner  of  notice  or  know- 
ledge of  such  covin  fraud  or  collusion,  as  is  aforesaid."  In  the  case  of 
Basset  v.  Nosworthy,  Finch.  Ch.  R.  182,  which  was  determined  on  the 
plea  of  bona  fide  purchaser  for  valuable  consideration  without  notice,  it 
appeared  that  the  purchase  was  made  at  a  very  inadequate  price.  Lord 
Nottingham  said,  the  question  is  not  whether  the  consideration  be  ade- 
quate, but  whether  it  is  valuable.  This  is  not  inconsistent  with  Russell 
V.  Hammond,  1  Atk.  15.  Three  deeds  were  executed  in  one  day.  For 
one  of  them  a  consideration  of  two  hundred  pounds  was  shown  ;  for  the 
second,  a  consideration  of  one  hundred  pounds  ;  for  the  last,  no  con- 
sideration appeared.  Lord  Hardwicke  thought  the  last  voluntary,  though 
it  was  urged  that  all  formed  one  transaction,  and  that  it  was  inartificial 
to  split  them.  He  thought,  however,  the  fact  that  the  donor  had  reserved 
an  annuity  equal  to  the  probable  income  for  his  own  life,  palpable  evidence 
of  fraud.  This  showed  the  transaction  to  be  merely  colorable,  the  donor 
being  much  indebted  at  the  time.  In  Doe  v.  Routledge,  Cowper,  t05,  a 
-KoQ-i  person  *not  indebted,  had  made  a  voluntary  conveyance.     Desiring 

'^-'  afterwards  to  defeat  this,  he  made  a  nominal  sale  of  the  same  pre- 
mises at  about  one-tenth  of  the  value.  It  appeared  that  the  last  grantee 
knew  of  the  former  conveyance.  Lord  Mansfield  held  the  first  conveyance 
good,  and  of  the  last,  said  that  it  should  be  a  bona  fide  transaction,  and 
a  fair  purchase  in  the  understanding  of  mankind  ;  but  it  was  manifestly  a 
mere  contrivance,  and  therefore  void.  In  Stephens  v.  Olive,  2  Br.  C  C. 
90,  the  trustees  of  the  wife  having  covenanted  to  indemnify  the  husband 
against  the  wife's  debts,  this  was  held  a  sufficient  consideration  for  the 
settlement  on  her.  And  so  in  Nunn  v.  Wilsmore,  8  T.  R.  521,  where  it 
is  said  the  Court  is  not  particular  as  to  consideration,  if  it  be  bona  fide. 


*32]  CHARLESTON,   APRIL,    1834.  31 

The  whole  subject  is  very  fully  consiJered  in  Copes  v.  Middleton,  2  Mad. 
Ch.  R.  556,  and  the  cases  reviewed.  In  that  case,  an  uncle,  insolvent  in 
his  circumstances,  shortly  before  his  death  conveyed  to  his  nephew  an 
estate,  for  a  consideration  which,  according;  to  the  testimony,  appeared 
to  be  about  half  its  value.  This  was  sustained,  as  from  the  circumstances 
it  did  not  ap^iear  but  that  the  transaction  was  bona  fide;  though  the 
uncle's  kindness  to  his  nephew  might  be  supposed  to  have  had  an  influ- 
ence in  inducing  him  to  sell  at  a  lower  price.  It  is  said  a  conveyance 
cannot  be  invalidated  under  the  Statute  13  Eliz.,  if  the  defendant  be  a 
bona  fide  purchaser.  Was  it  known  to  vendor  and  vendee,  that  the 
estate  was  worth  more  than  it  was  sold  for  ?  It  did  not  appear  that  the 
nephew  knew  the  uncle  to  be  indebted.  In  Sands  t'.  Ilildeith,  14  Johns. 
493,  the  opinion  of  Chief  Justice  Spencer  was  expressed,  that  where  there 
is  a  consideration,  though  the  intention  of  the  vendor  may  have  been 
fraudulent,  yet,  under  the  statute  of  Elizabeth,  the  conveyance  is  not 
void  unless  the  purchaser  were  a  party  to  the  fraud  ;  contrary  to  an  inti- 
mation of  opinion  in  the  same  case  given  by  Chancellor  Kent,  who 
afterwards  (3  Johns.  C.  C.  378)  assented  to  the  suggestion  of  Justice 
Spencer. 

The  cases  show  sufficiently,  that  where  a  consideration  is  paid,  in  order 
to  avoid  the  conveyance,  the  Court  must  be  satisfied  of  an  actual  fraudu- 
lent intention  to  defeat  creditoi's,  and  in  general  the  preponderance  of 
authority  seems  to  be  that  the  purchaser  must  be  a  party  to  the  fraud, 
notwithstanding  what  is  said  by  Lord  Northington  in  Partridge  v.  Gopp, 
Amb.  596,  that  it  is  the  motive  of  the  *giver,  and  not  the  know-  i-^j-qq 
ledge  of  the  acceptor,  that  is  to  weigh.  Xow,  it  is  not  even  con-  '- 
tended  in  the  present  case  tliat  the  defendant  was  a  partaker  of  any  actual 
fraudulent  intention,  and  indeed  hardly  urged  that  Mrs.  Hall  had  any 
such  intent.  The  Court  can  see  no  reason  to  impute  such  inteutiou 
to  either 

It  is  urged,  however,  that  this,  though  in  form  a  sale,  made  upon  con- 
sideration, was  in  fact  merely  a  gift.  But  this  is  the  very  question  that 
has  been  considered  throughout.  It  was  in  form  a  sale  ;  money  was  paid. 
Was  it  such  substantially  and  bona  fide,  or  only  a  contrivance  to  provide 
for  the  defendant  at  the  expense  of  creditors  ?  The  transaction  was  this, 
forty-eight  slaves,  appraised  at  about  nineteen  thousand  dollars,  and  some 
land,  of  the  value  of  which  we  have  no  very  distinct  evidence,  (a  con- 
sideration of  five  thousand  dollars,  is  stated  in  the  deed,)  were  conveyed 
by  Mrs.  Hall  to  the  defendant.  He,  in  return,  gave  her  his  bond,  con- 
ditioned to  day  off  her  debts  specified  in  a  schedule  to  the  amount  of 
upwards  of  four  thousand  dollars,  and  the  grant  of  an  annuity  for  life 
of  one  thousand  and  sixty  dollars.  This  annuity  is  equal  to  the  legal 
interest  on  the  estimated  value  of  the  slaves,  deducting  the  amount  of  the 
debts.  It  is  urged  that  it  is  merely  a  gift  under  color  of  a  sale,  as  if 
Mrs.  Hall  had  conveyed  the  property  to  him  in  trust,  first  to  pay  off  cer- 
tain of  her  debts,  next  to  pay  the  rents  and  profits  to  herself  during  life, 
with  remainder  to  himself  after  her  death  ;  or,  as  if  she  had  conveyed  to 
him,  charged  with  the  payment  of  part  of  her  debts  and  an  annuity  of  one 
thousand  and  sixty  dollars,  for  her  life.  But  by  this  method  of  reasoning, 
every  sale  of  property  at  an  under  value  might  be  construed  a  gift  of  the 
surplus.     There  is  nothing  to  forbid  a  sale  for  an  annuity,  any  more  than 


32  SOUTH  CAROLINA  EQUITY  REPORTS.        [*33 

for  money  in  hand.  The  distinction  between  the  cases  supposed,  and  the 
present,  is  this,  in  those  cases  there  is  not  even  a  colorable  consideration 
moving  from  the  grantor  to  the  grantee.  If  the  estate  should  not  be  suffi- 
cient to  pay  the  debts,  or,  if,  after  payment  of  the  debts,  the  income  should 
not  produce  the  annuity,  the  grantee  would  incur  no  personal  liability. 
He  would  lose  nothing  in  any  event.  If  it  should  be  more  than  sufficient 
for  these  purposes,  the  surplus  would  be  a  mere  gratuity  to  him.  But  in 
the  case  before  us,  if  the  estate,  by  any  unexpected  casualty  had  perished, 
the  defendant  would  have  been  personally  liable  for  the  debts,  and  must 
have  paid  the  annuity,  though  the  estate  had  not  produced  a  cent  of 
*^11  ii^come.  The  payment  of  the  debts  and  the  annuity  were  *p]ainly 
-^  regarded  as  the  consideration  both  for  the  slaves  and  the  land, 
and  they  formed  one  transaction.  No  doubt  such  a,  transaction  might  be 
merely  colorable  and  fraudulent,  as  in  the  case  of  Russel  v.  Hammond, 
where  Lord  Hardwicke,  upon  the  defendant's  proof  of  the  consideration 
of  two  of  the  deeds,  held  the  third,  executed  on  the  same  day,  to  be 
voluntary,  and  the  reserving  of  an  annuity  to  the  annual  value  of  the 
estate  to  be  a  badge  of  fraud.  But  in  every  case  the  inquiry  is,  whether 
it  be  actually  so.  In  general,  I  should  say,  that  if  a  person  greatly 
indebted  and  knowing  himself  to  be  so,  should  convey  his  whole  property 
on  a  greatly  inadequate  consideration,  perhaps  such  a  one  as  the  present, 
with  no  ostensible  motive  but  to  provide  for  his  family,  to  one  who  might 
be  inferred  to  have  knowledge  of  the  circumstances,  this  would  be  re- 
garded as  colorable  and  void.  But  what  are  the  circumstances  of  the 
present  case  ?  The  defendant  took  the  utmost  pains  to  be  informed  of 
all  the  debts  of  Mrs,  Hall  and  provided  for  their  payment,  and  he  seems 
to  have  been  unaffectedly  reluctant  to  enter  into  the  transaction  at  all. 
But,  as  I  have  said,  no  actual  fraud  is  imputed  to  him.  Then  with  regard 
to  Mrs.  Hall,  she  had  the  most  urgent  and  substantial  motives  to  make 
this  arrangement,  arising  from  her  infirmity  and  imbecility  to  manage  her 
property  so  as  to  make  it  produce  her  a  support,  and  was  prompted  and 
urged  to  it  by  her  confidential  friends.  There  is  great  reason  to  doubt 
whether,  at  the  time,  she  knew  or  recollected  the  existence  of  this  debt. 
She  retained  twenty  slaves,  which,  if  estimated  at  the  prices  at  which  the 
others  were  appraised,  would  have  been  sufficient  to  pay  the  debt ;  and 
if  they  had  proved  insufficient,  her  annuity  might  have  been  made  liable, 
subjecting  her  to  the  most  cruel  embarrassment.  Some  of  the  slaves 
retained  were  favorite  ones,  whom  she  desired  to  emancipate,  and  which, 
of  all  her  property,  it  should  seem,  she  would  have  been  most  unwilling 
to  render  liable  to  be  taken  and  sold  for  her  debts.  She  was  anxious  for 
the  comfort  of  her  slaves,  and  had  confidence  in  the  defendant's  kind 
treatment  of  them.  Under  these  circumstances,  it  seems  to  me  that  it 
would  be  extravagant  to  impute  her  conduct  to  the  fraudulent  motive  of 
defeating  the  payment  of  this  debt.  We  must  regard  the  defendant  as  a 
bona  Jide  purchaser  for  valuable  consideration. 

The  decree  is  affirmed. 

Johnson,  J.,  concurred. 


*Qf; 


35]  CHARLESTON,    APRIL,    1834.  33 


*Elizabeth  Pakker,  Executrix  of  Isaac  Parker,  i;.  The  Credi-  r-^^^ 
tors  of  Isaac  Parker.  I-  ^^ 

[la  the  matter  of  Col.  Drayton.] 

The  garnishee  dying  pending  the  proceedings,  a  judgment  entered  up  ngainst  him 
alter  his  death  is  irregular,  and  may  be  set  aside  at  law :  ami  if  the  executors 
appeared  and  consented  to  the  trial,  at  most  it  could  only  be  regarded  as  a  judg- 
ment against  them,  and  not  rank  as  a  judgment  against  the  garnishee,  so  as  to 
give  prioritj'  over  other  creditors  who  had  not  obtained  judgment  in  his  lifetime. 
[*3y] 

By  the  Attachment  Act  things  capable  of  being  identified,  such  as  specific  chattels 
and  evidences  of  debts,  are  bound  by  the  levy  so  that  the  garnishee  cannot  after 
service  deliver  them  to  the  owner,  or  any  one  else,  without  being  liable  for  their 
value;  and  in  this  sense,  the  attachment  is  said  to  have  a  lien  from  the  time  of 
its  being  levied;  but,  in  the  case  of  a  debt  due  by  the  garnishee  to  the  absent 
debtor,  it  is  incapable  of  being  identified  specifically  as  his  estate,  the  service  of 
the  attachment  creates  no  general  lien  on  the  estate  of  the  garnishee ;  and  the 
only  way  the  money  so  due  can  be  bound  is,  that  by  the  service  of  the  attachment 
the  garnishee  is,  to  the  extent  of  his  debt,  made  the  debtor  of  the  plaintiff,  but 
no  lien  exists  against  him  until  judgment  is  actually  entered  against  him.  [*39] 

De  Saussure,  Chancellor.  In  this  case  the  master  has  made  a  report, 
which  states  the  question  clearly,  to  which  the  solicitors  on  the  part  of 
the  creditors  of  Isaac  Parker  have  filed  exceptions. 

The  following  is  the  report  of  the  master :  "  That  in  the  distribution  of 
the  funds  in  this  case,  a  question  arises  as  to  a  claim  on  the  part  of  Col. 
Drayton,  under  the  following  circumstances  :  On  the  1st  September, 
1808,  Col.  Drayton  became  the  surety  of  John  Parker,  in  a  bond  to 
John  King,  conditioned  for  the  payment  of  $150.  On  the  20th  of 
October,  1808,  John  King  assigned  the  bond  to  Jacob  Martin.  As  a 
counter-security  to  Col.  Drayton,  the  said  John  Parker  deposited  with 
him  the  bond  of  bis  brother,  Isaac  Parker,  for  $2586,  dated   H   May, 

1811.     About Jacob  Martin,  assignee  of  John  King,  sued  out  a 

writ  of  attachment  against  John  Parker,  a  copy  of  which  was  served  on 
Isaac  Parker,  for  the  purpose  of  attaching  in  his  hands  the  amount  sup- 
posed to  be  due  on  his  bond  to  John  Parker.  Isaac  Parker  made  his 
return  as  garnishee,  stating  that  he  had  no  moneys  of  John  Parker  in  his 
hands,  and  that  the  bond  in  which  he  was  bound  to  him,  was  paid.  On 
this  return  an  issue  was  made  up,  which  was  not  tried  in  the  life-time  of 
Isaac  Parker.  Testimony  had  been  taken,  however,  and  when  judgment 
was  entered  up  against  John  Parker,  the  absent  debtor,  a  verdict  was 
also  taken  against  Isaac  Parker,  and  judgment  entered  against  him  on 
the  19th  June,  1821,  which  was  subsequent  to  his  death.  Col.  Drayton, 
having  paid  the  bond  held  by  Martin,  as  assignee  of  King,  claims  the 
benefit  of  Martin's  proceedings  against  Isaac  Parker,  which  have  l)ecn 
duly  assigned  to  him.  It  is  objected  to  this  claim,  that  the  judgment 
entered  upon  the  verdict  taken  after  the  death  of  Isaac  Parker,  is  irregular, 
and  that  this  claim  cannot  rank  as  a  judgment  debt  against  the  estate  ; 
and  urged  in  its  behalf  that  the  attaching  creditors  obtained  a  lien  on 
the  funds  of  the  absent  debtor,  in  the  hands  of  the  garnishee,  which  is  uot 
defeated  by  the  death  of  the  latter. 


34  SOUTH  CAROLINA  EQUITY  EEPORTS.        [*35 

"  It  appears  to  me,  however,  (says  the  report,)  that  the  claim  in  this 
j^„„-|  case  cannot  rank  as  a  judgment  so  far  as  the  question  depends*  oa 
^^J  the  Act  of  1744,  called  the  Attachment  Act.  The  object  of  that 
Act  is  not  to  operate  on  the  estate  of  the  garnishee,  but  on  that  of  the 
absent  debtor.  The  effect  of  it,  is  not  to  give  the  attaching  creditor  a 
lien  on  the  estate  of  the  garnishee  for  the  amount  of  funds  which  he  may 
have  in  his  hands  belonging  to  the  absent  debtor,  but  only  to  take  such 
funds  from  under  the  control  of  the  absent  debtor,  and  entitle  the  creditor 
to  payment  out  of  them,  and  in  preference  to  the  other  creditors.  The 
death  of  the  garnishee  may  not  affect  this  right  or  preference  obtained  by 
the  issuing  of  the  writ  of  attachment,  so  far  as  the  absent  debtor  or  his 
creditors  are  concerned ;  but,  as  respects  the  garnishee  and  his  estate,  it 
appears  to  me  that  the  proceedings  are  arrested  by  his  death,  and  that 
it  would  be  necessary  to  bring  his  represei.tative  into  Court,  by  proper 
process,  before  any  further  proceedings  could  be  had,  intended  to  operate 
on  the  interests  of  the  estate  of  the  garnishee.  It  seems  such  proceedings 
were  not  had  in  this  case,  and  therefore,  when  this  judgment  was  entered, 
Mr.  Parker  being  dead,  there  was  no  party  in  Court  against  whom  it 
could  be  rendered. 

"  The  executri.x;  now  contends  that  there  is  nothing  due  from  the  estate 
of  Isaac  Parker,  on  his  bond  to  John  Parker ;  but  I  have  not  entered 
into  an  investigation  of  that.  The  above  view  is  altogether  independent 
of  the  question,  whether  a  Court  of  law  will  set  aside  this  judgment,  which 
is  actually  of  record." 

To  this  report  the  following  exceptions  were  filed : 

1.  Because  the  master  has  rejected  the  proof  of  the  judgment  of  Jacob 
Martin  i'.  Isaac  Parker,  whereas  it  is  submitted,  that  as  the  proceedings 
against  John  Parker  did  not  abate  by  the  death  of  Isaac  Parker,  the 
judgment  was  properly  entered  up  after  his  decease. 

2.  That  the  lien  of  the  attachment  was  not  lost  by  the  death  of  Isaac 
Parker,  and  that  the  judgment  of  Jacob  Martin,  though  it  cannot  by  relation 
defeat  purchasers  or  intervening  judgments,  is  good  against  the  executors 
and  general  creditors  of  the  said  Isaac  Parker. 

The  questions  which  arose  in  this  able  report  were  argued,  and  I  am 
now  to  decide  on  them.  It  was  admitted,  that  the  death  of  the  garnishee 
in  attachment  does  not  abate  the  suit  by  attachment,  nor  the  death  of  the 
absent  debtor.  This,  I  apprehend,  must  be  on  the  ground  that  the  pro- 
ceedings in  attachment  are  in  the  nature  of  proceedings  in  rem,  and 
j^qYi  therefore  not  abateable  by  the  death  of  *the  absent  debtor  or  gar- 
-^  nishce.  The  counsel  however  made  a  distinction,  by  which  he 
endeavored  to  weaken  the  force  of  the  admission,  insisting  that,  though 
the  death  of  the  garnishee  will  not  abate  the  suit  by  attachment  against 
the  absent  debtor,  it  will  stop  proceedings  against  the  estate  of  the  gar- 
nishee. The  remedy  by  attachment,  given  by  statute  to  the  creditor,  is 
so  anomalous  and  so  different  from  the  course  of  proceedings  under  the 
common  law,  that  scarcely  any  liglit  can  be  derived  from  the  rules  of  the 
latter ;  and  it  would  seem,  that  when  the  statute  gives  such  a  remedy,  all 
that  is  necessary  to  give  it  complete  effect,  follows  in  its  train.  I  am 
not,  however,  decided  in  any  opinion  on  this  question.  I  lean  very  much 
to  the  opinion  of  the  master  in  his  report ;  but  will  sustain  the  first  excep- 


*37]  CHARLESTON,    APRIL,    1834.  35 

tion  to  the  report,  with  a  view  to  its  being  carried  up  to  the  Appeal 
Court. 

The  second  exception  I  also  sustain,  for  the  reasons,  and  with  the 
qualification  stated  therein  ;  to  which  should  be  added,  that  the  applica- 
tion to  set  aside  the  judgment  in  question  should  have  been  in  the  Court 
of  law,  there  being  no  pretence  of  fraud  in  obtaining  it,  on  which  this 
Court  could  have  interfered. 

It  is  therefore  ordered  that  the  exceptions  be  sustained,  and  the  report 
of  the  Master  modified  accordingly. 

From  this  decree  an  appeal  was  taken  on  the  following  grounds : 

1.  Because  a  proceeding  in  attachment  is  not  a  proceeding  in  rem,  but 
a  proceeding  in  jjersonam,  the  quasi  in  rem  being  in  the  nature  of  a 
distringas  to  compel  an  appearance 

2.  That  although  the  death  of  Isaac  Parker,  the  garuishee,  did  not 
abate  the  proceedings  as  against  John  Parker,  the  absent  debtor,  yet  that 
his  death  did  abate  all  proceedings  as  against  him,  just  as  much  as  if 
John  Parker  had  brought  suit  against  him  on  the  bond,  alleging  it  to  be 
unpaid,  and  Isaac  Parker  having  pleaded  payment,  had  died  before  ver- 
dict pending  the  cause  for  trial. 

3.  That  this  is  not  a  case  in  which  one  Court  is  prohibited  from  exam- 
ining collaterally  the  judgment  of  another  independent  tribunal,  but  is  a 
case  in  which,  on  the  face  of  the  record,  the  absolute  nullity  thereof  is 
apparent,  and  is  therefore  a  clear  case  of  a  palpable  defect  of  jurisdiction. 

4.  That  the  issue  on  the  verdict  upon  which  judgment  was  entered 
against  Isaac  Parker,  was  a  mere  collateral  issue  to  try  the  question, 
under  a  feigned  issue,  whether  Isaac  Parker  had  in  his  hands  funds  of  the 
absent  debtor ;  that,  upon  the  finding  no  *judgment  could  regu-  p^g 
larly  be  entered  :  that  the  effect  merely  was,  that  Isaac  Parker  ^ 
was  compellable  to  amend  his  return  and  deliver  up  the  bond  :  that  the 
proceeding  was  not  in  the  nature  of  a  debt  on  bond  ;  that  no  judgment 
for  the  debt  could  be  entered  on  the  finding ;  that  the  bond  did  not  pass 
in  rem  jadicatum,  but  was  to  be  delivered  to  the  attaching  creditor  to  be 
sued  in  due  form. 

Grimke,  for  the  appellant. 

Petigru,  contra. 

Harper,  J.  So  far  as  the  claim  to  rank  as  a  judgment  creditor  of  the 
estate  of  Isaac  Parker,  depends  on  the  judgment  entered  up  against  Isaac 
Parker  after  his  death,  regarding  it  in  the  light  of  any  other  judgment 
entered  in  like  manner  against  a  deceased  defendant,  we  think  it  cannot 
avail  the  claimant.  The  brief  merely  states  the  fact,  that  the  judgment 
was  entered  after  the  death  of  Isaac  Parker.  If  so,  undoubtedly  it  was 
erroneous,  and  might  be  set  aside  at  law.  Though  the  death  of  a  garnishee 
does  not  abate  the  proceeding  in  attachment,  yet  undoubtedly  the  plain- 
tiff, when  an  issue  is  depending,  ought  not  to  proceed  to  trial  and  judg- 
ment without  bringing  in  the  executors.  The  proper  method  of  doing  this, 
I  suppose,  would  be  by  a  scire  facias.  In  the  present  case,  it  was  stated 
in  argument  that  the  executors  had  appeared  and  consented  to  the  trial, 
and  from  this  it  seemed  to  be  inferred  that  the  executors  would  be  estop- 
ped from  any  proceeding  to  set  aside  the  judgmeut.     Xo  othur  person 


36  SOUTH   CAROLINA   EQUITY   EEPORTS.  [*38 

than  the  executors  would  proceed  at  Law  for  that  purpose.  Standing  as 
a  judgment  against  the  deceased  liimself,  it  would  have  priority  against 
all  creditors  who  had  not  obtained  judgment  in  his  lifetime,  and  if  this 
preference  were  obtained  by  the  act  and  laches  of  the  executors,  they 
would  be  liable  to  the  other  creditors  as  for  a  decasfavit.  But  I  cannot 
take  this  view  of  the  matter.  The  voluntary  appearance  of  the  executors 
amounted  to  no  more  than  if  they  had  appeared  upon  a  scire  facias.  They 
consented  to  go  to  trial,  and  I  must  suppose  that  the  proper  judgment 
should  be  entered.  If  an  improper  judgment  was  entered,  I  see  nothing 
to  estop  the  executors  from  setting  it  aside  at  law.  A  judgment  against 
the  executors  would  entitle  the  plaintiff  to  no  priority,  and  this,  at  all 
events  in  equity  and  in  a  contest  between  creditors,  cannot  be  regarded 
as  any  thing  more.  I  do  not  understand  it  to  be  contended  that  the 
executors  ought  to  be  made  pei'sonally  liable. 

5j,„o-n  *But  even  regarding  it  merely  as  a  judgment  against  the  execn- 
-^  tors,  it  is  contended  that  it  must  have  relation  to  the  serving  of 
the  attachment  on  the  garnishee,  and  bind  his  estate  from  that  time.  The 
Attachment  Act,  after  providing  for  the  issuing  of  the  writ  "  to  attach 
moneys,  goods,  chattels,  debts  and  book  of  accounts,  belonging  to  the 
absent  debtor,  in  the  hands  of  any  person  or  persons  whatsoever,"  adds, 
"and  the  attaching  any  part  thereof  in  the  name  of  the  whole  that  is  in 
such  person's  hands,  power  or  possession,  sliall  secure  and  make  the 
whole  liable  in  law,  to  answer  any  judgment  that  shall  be  recovered  and 
awarded  upon  that  process."  The  attaching  of  "  moneys"  in  the  hands 
of  the  garnishee,  has  always  been  held  to  refer  to  a  debt  due  by  the  gar- 
nishee to  the  absent  debtor,  and  without  this  construction  there  is  no 
provision  in  the  Act  for  attaching  such  debt.  But  how  are  these  moneys 
to  be  secured  and  made  liable  to  answer  the  judgment?  If  there  were 
in  the  hands  of  the  garnishee  any  specific  chattels  of  the  absent  debtor, 
such  as  a  horse  or  a  slave,  or  the  evidences  of  debts  due  to  him,  such  as 
bonds,  notes,  or  books  of  account,  they  would  be  so  bound  that  the  gar- 
nishee could  not,  after  service  of  the  attachment,  deliver  them  to  the 
owner,  or  to  any  one  else  without  making  himself  liable  for  the  value. 
Or,  perhaps  the  plaintiff  might  follow  them  in  the  hands  of  any  one  into 
whose  possession  they  might  afterwards  come.  If  the  garnishee  should 
die,  and  these  chattels  should  come  into  the  possession  of  his  executors, 
they  would  be  compelled  by  the  Court  to  deliver  them  up  to  the  jilaintiff 
in  attachment  who  should  afterwards  recover  a  judgment.  It  is  in  this 
sense  that  the  attachment  is  said  to  have  a  lien  from  the  time  of  its  being 
levied.  But  these  are  things  which  are  capable  of  being  identified  and 
distinguished.  They  constitute  no  part  of  the  deceased  garnishee's  estate, 
nor  are  liable  to  his  creditors.  But  this  creates  no  lien  on  the  general 
estate  of  the  garnishee,  nor  is  tlie  plaintiff  in  attachment  ranked  as  a  credi- 
tor of  his,  though  he  might  become  a  creditor  if  the  articles  attached 
should  not  be  forthcoming.  But  in  the  case  o^i  moneys  in  the  garnishee's 
hands,  in  consequence  of  a  debt  due  by  him  to  the  absent  debtor,  how 
are  these  Xo  ho,  secured  and  made  liable?  They  are  not  capable  of 
being  identified.  There  is  -no  specific  money  which  you  can  direct  the 
executors  to  pay  over  to  the  plaintiff.  There  is  no  general  lien  on  the  gar- 
nishee's estate.     I  can  conceive  no  other  way  in  which  these  can  be  said 


*39]  CHARLESTON,    MARCH,    1834.  37 

to  be  bonncl,  but  this :  that  after  the  attachment  *levied,  the 
garnishee  is  not  at  liberty  to  pay  the  debt  to  his  creditor,  or  to  L  ^^ 
any  one  authorized  by  him  to  receive  it,  and  if  he  does  so,  he  will  still  be 
liable  to  the  plaintiff  in  attachment  who  shall  afterwards  recover  a  jud"-- 
raent.  By  the  serving  of  the  attachment,  the  garnishee  who  owes  the 
absent  debtor,  is  made  the  debtor  of  the  plaintiff  who  shall  afterwards 
recover  judgment,  but  he  is  not  the  judgment  debtor,  until  judgment  is 
actually  entered  against  him. 

It  is  ordered  and  decreed  that  the  decree  of  the  Chancellor  be  reversed, 
and  the  Master's  report  confirmed. 

Johnson,  J.,  concurred. 


YoL.  1.— 26 


CASES   IN    CHANCERY 

ARGUED  AND  DETERMINED  IN  THE 

COURT  OF  APPEALS  OF   SOUTH  CAUOIINA 

Columbia — Pag  anb  |une,  1834. 


JUDGES  PRESENT, 


Hon.  DAYID  JOHNSON,  Presiding  Judge. 
Hon.  J.  B.  O'NEALL.      ]      Hon.  WILLIAM  HARPER. 


.Iohn  Conner,  Administrator,  and  others,  v.  Robert  Johnson,  Admin- 
istrator, and  others. 

Devise  to  several  ascertained  individuals,  and  to  a  class  of  individuals  to  be  ascer- 
tained on  some  future  event,  that  class  will  take  a  share  equal  to  that  of  each  of 
the  ascertained  individuals,  and  no  more.  [*-l-l] 

Testator  devised  that  "after  the  death  of  his  wife,"  his  estate  should  be  given  to 
seven  p'ersons  by  name,  and  to  the  children  of  E.  C  : — Held,  that  the  persons 
named  took  each,  one  eighth  part  of  the  estate,  and  the  cliildren  of  E.  C.  living 
at  the  death  of  the  tenant  for  life,  the  remaining  eighth — and  that  no  estate  vested 
in  any  of  the  children  of  E.  C.  who  died  before  the  period  of  distribution  (the 
death  of  the  tenant  for  life,)  so  as  to  be  transmissible  to  their  personal  repre- 
sentatives. [*44] 

Orangeburgh,  January,  18.3L — Before  Chancellor  De  Saussure. 

This  bill  was  filed  by  John  Conner,  as  administrator  de  bonis  non, 
and  with  the  will  annexed,  of  Jacob  Whiteman,  and  as  j^^'o.  ami  of 
Clarissa  and  Joel  Rhode,  "William,  Mildred  and  Jefl"erson  Conner,  infant 
children  of  Elizabeth  Conner,  formerly  Elizabeth  Carn,  and  called  by 
that  name  in  the  will  of  Jacob  Whiteman.  The  bill  originally  embraced 
many  objects  and  several  defendants,  but  all  the  points  in  controversy 
have  been  finally  adjusted  except  one,  which  arises  under  the  following 
state  of  facts:  Jacob  Whiteman  died  in  1810,  leaving  a  will,  by  which 
he  devised  his  whole  estate.  To  his  widow,  Elizabeth,  the  bulk  of  it  was 
given  for  life.  After  disposing  of  various  portions  of  it,  the  last  clause, 
*4.9n  '^ii^der  which  arises  *the  question  now  made  for  this  Court,  is  pre- 

"'-'  sented  in  the  following  words  :  "  Item — and  my  will  is,  that  after 
the  death  of  my  wife,  the  tract  of  land  on  Indian  Camp,  and  all  the  rest 
of  my  estate  not  otherwise  disposed  of,  shall  be  equally  divided  between 
David  Rees,  and  Daniel  and  Jacob  XJtesey,  sons  of  Jacob  Utesey,  and 
David,  and  Isaac,  and  Ann  Utesey,  children  of  George  Utesey,  and 
Jacob  Carn  and  the  children  of  Elizabeth  Carn,  (afterwards  Elizabeth 


*42]  COLUMBIA,  MAT,   1834.  39 

Rhode,  and  now  Elizabeth  Conner,)  children  and  grand-children  of 
Frederick  Carn  ;  and  whereas,  I  have  made  fonr  different  parts  of  fami- 
lies my  heirs,  my  will  and  desire  is,  that  if  any  of  them  shonld  die  with 
(meaning  without)  issue,  then  and  in  that  case,  his  or  her  share  shall  be 
equally  divided  between  my  adopted  heirs  of  the  same  family." 

Of  one  of  these  families,  Daniel  Utesey  died  after  the  testator  and 
before  the  tenant  for  life,  leaving  no  issue.  Of  another  family,  Jacob 
Carn  died  without  issue,  after  the  testator  and  before  the  tenant  for  life. 
And  Elizabeth  Carn,  named  in  the  will,  was  his  sister,  and  was  then 
married  to  one  Christian  Rhode.  She  had  then  alive  one  child,  named 
Daniel  G.  Rhode,  who  afterwards  died  an  infant  and  before  the  tenant 
for  life.  She  also  had  alive  at  the  death  of  Mrs.  Whiteman,  the  tenant 
for  life,  five  other  children  ;  two  by  the  first  husband,  named  Clarissa 
and  Joel  Rhode,  and  three  by  the  plaintiff,  John  Conner,  named  William, 
Mildred  and  Jefferson  Conner.  The  bill  claimed  for  these  five  children, 
each,  one  equal  share  of  the  estate,  and  also  two  other  shares,  one  in 
right  of  their  uncle  Jacob  Carn,  and  one  in  right  of  their  brother,  Daniel 
G.  Rhode  :  and  also  submitted  that  Jacob  Utesey,  having  survived  his 
brother  Daniel,  is  entitled  to  two  distributive  shares.  For  the  defend- 
ants, it  was  contended,  that  these  families  took  each  one-fourth  of  the 
residue,  and  not  per  capita.  Or,  to  make  the  distinction  more  palpable, 
the  plaintiffs  contend  that  this  portion  of  the  estate  shall  be  divided  into 
thirteen  shares,  and  claim,  as  the  children  of  Elizabeth  Carn,  seven-thir- 
teenths. The  defendants  contend  that  it  is  to  be  divided  into  four 
shares,  and  the  plaintiffs  receive  only  one-fourth.  In  deciding  this  part 
of  the  case.  Chancellor  De  Saussure  says  :  "Some  of  the  remainder-men 
died  without  leaving  issue.  A  question  was  raised,  who  were  entitled 
under  the  will  to  their  shares."  And  after  copying  the  clause,  as 
set  out  above,  proceeds:  "It  is  a  very  obscurely  drawn  will,  yet  I 
think  that  the  intention  is  plain  enough  in  this  case.  He  meant 
*that  each  of  those  four  parts  of  (distinct)  families,  as  he  calls  r*^q 
them,  should  take  the  share  of  any  one  of  the  members  of  each  •- 
family  dying  without  issue.  Thus,  as  Daniel  Utesey  and  Jacob  Utesey 
formed  one  of  these  stocks,  on  the  death  of  Daniel  without  issue,  Jacob 
is  to  take  his  share.  So  as  Jacob  Cam  was  one  of  these  four  stocks 
wdien  he  died  without  issue,  the  other  members  of  that  stock  became 
entitled  to  his  share." 

From  this  part  of  the  decree  the  plaintiffs  appeal,  on  the  grounds  : 
That  the  remainder-men  took  per  capita,  and  that  the  children  of 
Elizabeth  Carn  (now  Conner)  are  entitled  to  seven-thirteenths  of  the 
estate  instead  of  one-fourth,  to  wit.  :  to  five  thirteenths  in  their  own 
immediate  right — to  one-thirteenth  through  their  uncle,  Jacob  Carn,  and 
one  other  thirteenth  through  their  deceased  brother,  Daniel  G.  Rhode. 

Elmore,  for  the  appellant,  cited  3  Br.  Ch.  C.  367  ;  1  P.  W.  340 ; 
2  P.  W.  383  ;  2  Vern.  705  ;  Forrest,  251  ;  1  Br.  C.  C.  31  ;  3  Br.  C. 
C.  64. 

Harper,  J.  -I  shall  first  consider  the  case  on  the  words  of  the  will, 
which  follow  :  "  Item,  and  my  will  is,  that  after  the  death  of  my  wife, 
the  tract  of  land  on  Indian  Camp,  and  all  the  rest  of  my  estate  not  other- 
wise disposed  of,  shall  be  equally  divided  between  David   Rees,  and 


40  SOUTH    CAROLINA    EQUITY    REPORTS.  [*43 

Daniel  and  Jacob  Utesey,  sons  of  Jacob  TJtesey,  and  David,  and  Isaac, 
and  Ann  Utesey,  children  of  George  TJtesey,  and  Jacob  Carn,  and  the 
children  of  Elizabeth  Carn,  (afterwards  Elizabeth  Rhode,  and  now 
Elizabeth  Conner,)  children  and  grand-children  of  Frederick  Carn." 

I  consider  it  to  be  very  well  settled,  that  if  there  be  a  devise  to  an 
individual  designated  by  name,  and  to  other  individuals  designated  as  a 
class,  as  to  A  and  the  children  of  B  ;  or  if  it  be  to  the  children  of  A  and 
the  children  of  B,  all  the  individuals  take  equally,  and  per  capita.  So, 
if  the  devise  be  to  next  of  kin,  they  will  take  per  capita,  and  not  per 
stirpes.  ■Blackler  v.  Webb,  2  Pr.  Wms.  383  ;  Northey  v.  Strange,  1 
Pr.  Wms.  340 ;  Green  v.  Howard,  1  Br.  C.  C.  31  ;  Phipps  v.  Garth,  3 
Br.  C.  C.  64  ;  Butler  v.  Stratton,  3  Br.  C.  C.  369.  But  in  the  case  of 
Cole  v.  Creyon,  yl  Hill  Ch.  311,)  decided  by  this  Court,  after  a  good 
deal  of  consideration,  in  May,  1833,  it  was  held,  that  an  exception  must 
be  made,  and  that  "if  there  be  a  bequest  to  an  ascertained  individual, 
*i  t1  ^"^^  ^^  ^  class  of  unascertained  individuals,*  (to  be  ascertained  at 

'  -'  any  future  time  after  the  death  of  the  testator,)  it  vests  one-half 
in  the  said  individual,  and  the  other  half  in  the  individuals  of  the  class 
collectively,  when  they  are  ascertained."  It  follows  from  the  principles 
of  that  decision,  that  if  there  be  a  devise  to  sevei*al  ascertained  indi- 
viduals, and  a  class  of  unascertained  individuals,  to  be  ascertained  on  a 
future  event,  that  class  will  take  a  share  equal  to  that  of  each  of  the 
ascertained  individuals,  and  no  more  ;  they  taking  the  residue  jointly. 
It  depends  on  this,  that  the  different  interests  must  vest  at  difTerent  times. 
The  shares  of  the  ascertained  individuals  must  vest  at  the  death  of  the 
testator  ;  that  of  the  unascertained  individuals,  cannot  vest  until  the  event 
happens  by  which  they  are  to  be  determined,  and  upon  any  other  con- 
struction it  would  be  impossible  to  determine  what  interest  did  vest  at 
the  testator's  death.  That  case,  like  the  present,  was  a  devise  to  the 
testator's  wife  for  life,  and  after  her  death  to  be  divided  between  Alexan- 
der Creyon,  and  the  children  of  Elizabeth  Cole,  who  was  still  living.  In 
Justice  Windham's  case,  (5  Rep.  8,)  it  is  said  that  joint  words  shall  be 
taken  severally,  "  sometimes  in  respect  that  the  grant  cannot  take  effect 
but  at  several  times,  as  24  E.  3,  29,  a,  a  remainder  limited  to  the  right 
heirs  of  J.  S.  and  J.  N.,  (J.  S.  and  J.  X.  being  alive,)  in  which  case  the 
words  are  joint,  and  yet  the  heirs  shall  take  severally."  This  is  on  the 
ground  of  the  property's  vesting  at  different  times.  The  heirs  of  J.  S. 
and  J.  N.  cannot  be  ascertained  till  their  deaths,  for  nemo  hceres  viventis, 
and  it  is  not  to  be  supposed  that  they  will  die  at  the  same  time.  Mr. 
Preston,  in  his  Treatise  on  Estates,  (2  vol.,  p.  20,)  refers  to  this  case, 
and  as  an  inference  from  that  and  other  cases  mentioned,  says,  (p.  22,) 
"  A  grant  may  be  given  to  the  right  heirs  of  three  persons,  of  whom  two 
are  dead  and  one  is  living.  No  determination  which  occurs  has  settled 
the  quality  of  the  estates  which  shall  pass  by  a  gift  under  these  circum- 
stances. From  principle,  it  should  seem,  that  the  right  heirs  of  the 
person  who  is  living  would  have  one-third  part  separately  to  themselves, 
and  that  the  heirs  of  the  two  deceased  persons  would  be  joint  tenants  of 
the  remaining  two-third  parts." 

In  the  case  before  us,  there  were  at  the  death  of  the  testator  seven 

*451  P^^"^*^'^^  designated  and  cei'tain,  to  whom  the  estate  was  given  *after 

the  death  of  his  wife,  and  whose  interests  necessarily  vested,  and 


*45]  COLUMBIA,  MAY,   1834.  41 

a  class  of  persons  wlio  could  not  be  ascertained  till  the  death  of  tho 
tenant  for  life,  nor  their  interests  vest  till  then.  It  is  clear  that  all  the 
children  of  Elizal)eth  Carn,  born  before  the  period  of  distribution  would 
be  entitled  to  take  ;  and  in  the  same  case  of  Cole  and  Creyon,  we  have 
held  that  the  property  did  not  so  vest  in  any  of  the  children  of  Eli/>aV)eth 
Carn,  who  died  in  the  life-time  of  the  tenant  for  life,  as  to  be  transmissible 
to  their  personal  representatives.  Their  interest  was  contingent  until 
the  death  of  the  tenant  for  life.  It  results  from  these  principles,  that  at 
the  testator's  death,  the  seven  designated  persons,  David  Ilees,  Daniel 
TJtesey,  Jacob  Utesey,  David  Utesey,  Isaac  Utesey,  Ann  Utesey,  and 
Jacob  Carn,  took  under  the  words  of  the  will  which  I  have  quoted, 
seven-eighths  of  the  estate  as  joint-tenants,  and  one-eighth  remained  for 
the  children  of  Elizabeth  Carn,  who  should  be  living  at  the  death  of  the 
tenant  for  life. 

Nor  do  I  think  the  words  of  the  will  which  follow,  can  produce  any 
different  effect :  "  And  whereas  I  have  made  four  different  parts  of  fami- 
lies ray  heirs,  ray  will  and  desire  is,  that  if  any  of  them  die  without  issue, 
then  and  in  that  case,  his  or  her  share  shall  be  equally  divided  between 
my  adopted  heirs  of  the  same  family."  There  is  nothing  inconsistent  in 
the  devisees'  taking  in  the  manner  which  I  have  indicated,  and  the  limita- 
tion of  the  interest  of  each  to  the  survivors  of  the  same  family. 

The  will  speaks  of  four  families.  I  suppose  that  David  Rees,  though 
of  a  different  name,  was  of  the  same  family  with  Daniel  Utesey  and  Jacob 
Utesey,  as  Jacob  Carn  is  clearly  pointed  out  to  be  of  the  same  family 
with  the  children  of  Elizabeth  Carn.  If  so,  upon  the  death  of  Daniel 
Utesey,  his  share  accrued  to  David  Rees  and  Jacob  Utesey.  If  they 
were  not  in  any  manner  of  the  same  family,  then  to  Jacob  Utesey  alone. 
The  fact  may  be  inquired  of  by  the  Commissioner. 

It  follows  from  what  I  have  said,  that  the  plaintiffs,  children  of  Eliza- 
beth Carn,  are  entitled  to  one-eighth  of  the  estate  under  the  devise  to 
them,  and  one-eighth  in  right  of  their  uncle  Jacob  Carn.  And  it  is 
ordered  and  decreed,  that  the  decree  of  the  Chancellor  be  modified 
accordingly. 

Johnson  and  O'JSTeall,  Js,,  concurred. 


*Jesse  Gordon,  Administrator,  vs.  Sarah  W.  Stevens.       [*46 

When  the  wife  may  claim  dower,  and  at  the  same  time  take  under  her  husband's 
will — The  cases  on  the  subject  considered.  [*47] 

To  exclude  the  right  of  dower,  the  intent  must  appear  by  express  words,  or  by  clear 
and  manifest  implication.  [*48] 

A  devise  of  lands  to  trustees  to  sell,  or  with  directions  to  executors  to  sell,  passes 
the  estate  subject  to  dower: — and  where  the  testator  bequeathed  to  his  wife  all 
the  property  which  he  obtained  by  her  in  marriage,  and  directs  that  his  estate  be 
sold  to  pay  his  debts  and  provide  for  his  children: — Held,  that  the  wife  was  enti- 
tled to  dower,  notwithstanding  she  accepted  the  legacy,  and  that  the  sale  of  the 
land  must  be  subject  to  that  right.  [*19] 

Heard  before  Chancellor  De  Saussure,  at  Union,  June,  1833. 


42  SOUTH   CAROLINA   EQUITY    REPORTS.  [*46 

The  bill  states  that  Edward  Stevens  died  in  1832,  leaving  a  will,  by 
Mhich  he  disposed  of  his  property  in  the  following  clauses,  to  wit: 

"  1st.  It  is  nay  will  and  desire,  that  my  loving  wife,  Sarah  W.  Stevens, 
do  have  all  the  property  which  come  by  lier  in  fnarriage  ;  and  in  i)lace  of 
the  horses  which  I  have  traded,  I  give  her  my  horses,  Billy  and  Hector ; 
and  that  she  do  pay  off"  the  debt  she  owes  to  Thomas  Pratt,  of  Newberry 
village,  out  of  the  above  specified  property." 

"  2dly.  It  is  my  will  and  desire,  that  all  my  estate  be  sold,  and  my  just 
and  lawful  debts  be  paid,  and  that  the  balance  of  the  money,  arising  from 
the  sale  thereof,  be  equally  divided  between  my  three  children,  Elizabeth 
D.,  James  Henry,  and  Jesse  Warren  Stevens." 

That  the  plaintiff  has  taken  out  letters  of  administration  with  the  will 
annexed.  That  the  testator,  died,  seized  of  a  valuable  plantation,  on 
which  the  defendant  (his  widow)  has  resided  since  his  death,  and  in  which 
she  claims  dower,  although  she  has  accepted  the  legacy  under  the  will,  and 
that  this  land  is  directed  to  be  sold  and  divided  between  his  children  after 
the  payment  of  the  debts  ;  and  it  is  submitted  that  she  has  made  her  elec- 
tion by  taking  under  the  will,  and  thus  barred  her  right  of  dower.  That 
after  the  payment  of  the  debts  out  of  the  property  bequeathed  to  the 
children,  the  provision  made  by  the  will  for  the  defendant  will  l)e  aljout 
equal  with  that  for  the  children.  The  bill  prays  the  decree  of  the  Court 
on  the  right  of  the  defendant  to  dower ;  and  if  she  has  not  already 
elected,  that  she  be  required  to  elect,  either  to  take  under  the  will  and 
abandon  her  dower,  or  taking  dower,  to  abandon  the  legacy ;  and  an 
account  for  rents  and  profits. 

The  Chancellor  decreed  in  favor  of  the  defendant,  allowing  her  dower, 
notwithstanding  the  acceptance  of  the  legacy;  and  the  plaintiff  appealed 
on  the  grounds : 

1.  That  the  claim  of  dower  is  incompatible  with  the  provisions  of  the 
will ;  the  testator  clearly  intending  to  bar  the  widow's  right  of  dower,  as 
otherwise  the  will  operates  une(iually  and  unjustly  on  his  minor  children. 


* 


4Y] 


*2.  That  the  defendant  having  elected  to  take  under  the  will,  she 


cannot  claim  against  it ;  and  if  she  has  not  elected,  she  should  be 
put  to  her  election. 

Herndon,  for  tlie  appellant,  on  the  first  ground,  cited  4  Eq.  Rep.  294, 
Arab.  682  ;  2  M'C.  Ch.  300  ;  and  on  the  second  ground,  7  Bacon,  Ab. 
Election,  300  ;  2  Sch.  and  L.  449  ;   1  Ves.  280. 

JoiixsoN,  J.  The  leading  question,  and  that  to  which  the  grounds  of 
this  motion  are  principally  directed,  is  whether  the  defendant  is  entitled 
to  dower  in  the  lands  of  her  late  husband,  the  plaintiff's  testator. 

The  widow's  right  of  dower  is  one  with  which  the  law  invests  her,  and 
over  which  the  husl)and  has  no  control.  He  can  neither  dispose  of  it  by 
contract  in  his  lifetime,  nor  direct  the  disposition  of  it  after  his  death  by 
will  or  otherwise.  She  can  only  be  deprived  of  it  by  her  own  act  or 
voluntary  consent.  The  husband  has,  however,  the  unquestionable  right 
to  annex  to  the  dispositions  of  his  other  property,  by  will,  any  condition 
he  may  think  proper,  which  is  not  in  itself  against  the  law.  He  may,  there- 
fore, make  it  the  condition  of  a  legacy  to  his  wife,  that  she  shall  renounce 
her  dower  or  declare  that  it  shall  be  in  lieu  or  bar  of  her  dower,  and  if 


*47J  COLUMBIA,  MAY,   1834.  43 

she  accept  it,  must  necessarily  so  operate.  It  seems  to  lie  universally 
agreed,  too,  that  althongjh  no  such  condition  or  declaration  Is  exi)ressed 
in  the  will,  she  will  not  be  entitled  to  both  the  legacy  and  the  dower,  if 
retaining  her  dower  would  be  inconsistent  with  the  provisions  of  the  will, 
and  defeat  the  intention  of  the  testator.  But  there  has  been  much  difVi- 
culty  in  establishing  a  rule  of  construction  by  which  to  ascertain  the 
intention. 

In  Lawrence  v.  Lawrence,  2  Yern.  365,  the  testator  gave  to  his  wife 
a  part  of  his  personal  estate  and  a  part  of  his  real  estate,  during  her 
widowhood,  and  devised  the  residue  of  his  estate  to  trustees  for  the  pay- 
ment of  his  debts  and  other  legacies,  remainder  to  his  god-son — and  Lord 
Somers  was  of  opinion  that  here  was  a  plain  intention  that  the  legacy 
should  be  in  lieu  and  satisfaction  of  dower,  because  the  testator  had 
devised  all  his  other  real  estate  to  other  uses,  and  decreed  that  the  widow 
should  make  her  election  to  take  the  legacy  or  her  dower.  But  this 
judgment  was  afterwards  reversed  by  Lord  Keeper  Wright,  whose  opinion 
was  supported  on  an  appeal  to  the  House  of  Lords. 

*In  Villa  Real  i'.  Lord  Galway,  Ambler,  682,  the  testator  de-  r^  .o 
vised  to  his  wife  an  annuity  of  two  hundred  pounds,  and  the  bulk  L 
of  his  estate,  real  and  personal,  to  trustees  in  trust ;  amongst  other  things 
to  pay  this  annuity :  and  it  was  held  by  Lord  Camden,"  that  the  widow 
was  not  entitled  to  both  the  legacy  and  her  dower,  but  must  elect — 1st. 
Because  to  allow  the  claim  of  dower  would  disappoint  the  will.  It  puts 
the  widow  in  possession,  instead  of  the  trustees,  who  are  to  hold  the  whole, 
and  in  trust  for  the  widow  as  an  annuitant.  2dly.  Because  the  dower 
and  annuity  are  inconsistent  with  each  other. 

The  same  rule  is  laid  down  in  Arnold  *;.  Kemstead,  Ambler,  40G  ;  and 
Jones  V.  Collier,  Ibid.  730,  in  both  of  which  the  estate  in  which  dower 
was  claimed,  was  charged  with  an  annuity  for  the  wife. 

These  cases  would  seem  to  have  established  the  rule  that  an  annuity 
for  the  wife,  charged  upon  the  land  in  which  she  claimed  to  be  endowed, 
was  inconsistent  with  the  right  of  dower,  and  that  she  could  not  have 
both  ;  but  in  Pearson  v.  Pearson,  1  Bro.  Ch.  C.  292,  Ld.  Loughbo- 
rough was  of  opinion,  that  this  was  not  conclusive,  and  that  if  the  estate 
was  sufficient  to  satisfy  both  the  annuity  and  the  dower,  they  could  not 
be  regarded  as  inconsistent,  and  Lord  Thurlow  expressed  the  same 
opinion  in  Foster  v.  Cook,  3  Bro.  Ch.  C.  347. 

The  same  opinion  is  discussed  by  Lord  Alvanly,  in  French  v.  Pavies, 
2  Yesey,  Jr.,  572.,  and  Strahan  v.  Sutton,  3  Yes.  249,  and  altliongh 
the  judgment  was  not  upon  the  point,  there  is  an  evident  leaning  in  favor 
of  the  rule  in  Pearson  v.  Pearson,  and  the  case  of  Greatorex  i-.  Carey,  G 
Yes.  615,  was  decided  by  Sir  William  Grant  on  the  authority  of  Foster 
and  Cook.  The  subject  came  under  the  review  of  Lord  Kedesdale  in 
Birmingham  v.  Kerwan,  2  Sch.  &  Lef.  444,  and  the  rule  which  he  de- 
duces from  all  the  cases  is,  that  the  intent  to  exclude  the  right  of  dower 
by  a  voluntary  gift,  must  be  demonstrated  by  exi)rcss  words,  or  by  clear 
and  manifest  implication,  and  this  implication  must  arise  from  some  i)ro- 
•  vision  in  the  will  inconsistent  with  the  assertion  of  the  claim.  I  refer 
also  to  the  case  of  Adsit  v.  Adsit,  2  Johns.  Ch.  Pep.  44S,  where  all  the 
cases  are  collated  by  Chancellor  Kent  with  his  accustomed  al)ility — and 
after  all,  it  may  be  well  doubted,  whether  there  is  iu  England  any  thing 


44  SOUTH  CAROLINA    EQUITY    REPORTS.  [*48 

like  a  settled  rule  upon  the  subject,  or  whether  indeed  it  can  be  reduced 
^  . „-n  to  a  certain  rule.  It  is  a  question  of  intention  and  that  may  raani- 
-'  fest  itself  in  such  variety  of  form,  that  there  would  be  great 
difficulty  in  laying  down  any  rule  which  would  meet  every  case  that  may 
arise.  The  prosecution  of  the  inquiry  is,  however,  unnecessary  to  the  present 
case  ;  for,  as  remarked  by  Chancellor  Kent,  in  Adsit  v.  Adsit,  all  the 
eases,  however  irreconcilable  in  other  respects,  agree  in  this,  that  a 
devise  of  lands  to  trustees  to  sell,  or  with  directions  to  the  executor  to 
sell,  is  understood  to  pass  the  real  estate  subject  to  dower,  and  that  is 
precisely  this  case.  . 

A  legacy,  according  to  the  language  of  some  of  the  cases,  implies  a 
consideration  in  itself,  an  adequate  motive  for  the  gift,  and  it  will  not  be 
intended  that  the  testator  expected  that  the  legatee  should  renounce  any 
right  in  consideration  of  the  legacy,  unless  it  is  so  expressed,  either  in 
direct  terms,  or  by  necessary  implication.  In  this  case,  the  testator  gives 
to  his  wife,  the  defendant,  all  the  property  which  came  by  her  in  mar- 
riage, and  directs  that  his  estate  should  be  sold  to  pay  debts  and  to  pro- 
vide for  his  children.  He  will  be  presumed  to  have  known  that  the  wife 
would  be  entitled  to  be  endowed  of  his  lands,  and  as  he  has  not  thought 
proper  to  annex  to  the  legacy  to  her,  the  condition  that  she  should  receive 
her  dower,  it  is  a  fair  and  reasonable  conclusion,  that  they  should  be  sold 
subject  to  that  right,  and  in  this  way  the  provisions  of  the  will  are  ren- 
dered perfectly  consistent. 

It  is  stated  in  the  brief,  that  the  defendant  has  been  in  the  exclusive 
possession  of  the  lands  from  the  time  of  the  death  of  the  testator,  and  the 
bill  prays  an  account  for  rents  and  profits,  but  no  order  of  reference  is 
made  in  the  decree,  nor  does  the  decree  make  any  order  for  the  admeasure- 
ment of  the  defendant's  dower  ;  both  these  orders  are  rendered  necessaiy 
by  the  result,  and  were  omitted,  I  presume,  from  inadvertence.  The 
executor  asks  the  instruction  of  the  Court  also  in  relation  to  his  power 
to  sell  the  lands  under  the  direction  contained  in  the  will,  and  of  this 
also  there  can  be  no  doubt. 

It  is  therefore  ordered  and  decreed,  that  the  cause  be  referred  back  to 
the  Circuit  Court,  and  that  it  be  referred  to  the  Commissioner,  to  ascer- 
tain whether  the  defendant  is  liable  for  rents  and  profits,  and  to  what 
amount ;  and  that  a  writ  for  the  admeasurement  of  the  defendant's 
dower  in  the  lands  whereof  the  plaintiff's  testator  died  seized,  do  issue. 

O'Xeall  and  Harper,  Js.,  concurred. 


-(..Q-j  *James  M.  iS'ASH  r8.  Anthony  Savage  and  Wm.  Nash,  Ex'ors 
-^  of  Edward  Nash,  and  others. 

The  plantation  on  which  the  testator  resided  consisted  of  two  adjoining  tracts,  on 
one  of  which  his  mills  were  situated :  in  a  devise  of  the  plantation  to  his  wife  for 
life,  it  was  held,  that  the  mills  passed  under  the  general  term  "plantation." 
This  construction  is  supported  bj-  another  clause  of  the  will  directing  his  houses, 
mills,  and  all  his  lands,  to  be  equally  divided  among  bis  sons.  [*50] 

Heard  before  Chancellor  De  Saussure,  at  Greenville,  July,  1833. 
This  bill  was  filed  by  one  of  the  legatees  of  Edward  Nash,  against  his 
executor  and  devisee,  claiming  an  account  of  the  personal  estate,  and 


*50] 


COLUMBIA,    MAT,    1834.  45 


partition  of  tlie  real.  Tlie  demand  for  partition  was  resisted  on  the 
ground,  that  all  the  testator's  land,  with  a  mill  situated  on  one  of  the 
tracts,  passed  under  his  will  to  the  widow  for  life  :  and  the  Chancellor 
so  ruled.     From  his  decree  the  plaintiff  appealed. 

The  clauses  of  the  will  relating  to  this  question,  and  the  facts  connected 
with  it,  are  stated  in  the  following  opinion  of  this  Court. 

O'Nball,  J.  The  important  inquiry  in  the  case,  is  whether  the  testa- 
tor's mills,  and  the  land  on  which  they  are  erected,  passed  to  Mrs.  Nash  for 
life,  under  the  following  clause  : — "  I  give  and  bequeath  to  ray  well-beloved 
wife,  Mrs.  Nash,  my  dwelling-house  and  furniture,  one  negro  man,  named 
David,  one  negro  woman,  named  Phillis,  with  the  benefit  of  my  jylantation 
and  utensils  belonging  to  the  same,  a  good  horse  and  saddle,  with  other 
necessary  stock  ;  these  I  allow  her,  to  render  her  comfortable  during  her 
natural  life."  The  question  is,  what  passes  under  the  devise  of  the  tes- 
tator's plantation  ?  For  it  is  conceded  that  the  clause  just  cited,  is  a 
good  devise  of  the  plantation  on  which  the  testator  resided.  According 
to  the  proof  noticed  in  the  decree,  he  regarded  the  two  parcels  of  land 
on  which  he  lived  and  on  which  his  mills  are  erected,  "as  one  plantation." 
The  term  "plantation,"  as  well  as  "tract,"  is  used  as  merely  descriptive 
of  a  body  of  land.  In  common  parlance  they  are  used  as  convertible 
terms,  and  we  speak  of  "our  plantation,"  or  "  our  tract  of  land,"  intend- 
ing to  be  understood  as  speaking  of  the  same  body  of  land.  A  planta- 
tion may  consist  of  several  tracts  or  parcels  of  land  ;  indeed,  it  is  most 
commonly  the  case  that  it  does.  I  must  therefore  be  understood,  in  con- 
struing the  testator's  will;  in  that  sense,  in  which  he  was  in  the  habit  of 
using  and  understanding  it,  when  he  spoke  of  the  two  parcels  of  land  on 
which  he  lived  and  on  which  his  mills  were  *erected.  The  case  of  j-^r, 
Cain  V.  Maples,  1  Hill's  P^eports,  304,  sustains  this  view.  In  that  ^ 
case  it  was  held,  that  the  description,  "the  tract  of  land  whereon  the 
defendant  lives,"  included  two  adjoining  parcels  of  land  belonging  to 
defendant,  on  one  of  which  his  house  stood,  but  both  had  been  enclosed 
and  cultivated  as  one  tract. 

In  this  case  the  will  itself  shows  that  the  testator  intended  that  the 
mills  should  pass  with  the  land.  For,  in  the  eighth  clause,  appointing  the 
ultimate  division,  he  directs  his  "houses,  mills,  and  all  his  lands,^^  to  be 
equally  divided  between  his  sons.  Recur  to  the  first  clause,  and  it  is 
clear  that  he  has  in  terms  devised  his  dwelling-house,  and  in  effect  the 
plantation  on  which  he  lived,  to  his  wife  for  life.  He  could  not  have 
intended,  therefore,  in  the  eighth  clause,  to  have  subjected  his  dwelling- 
house  and  plantation  to  division  until  his  wife's  death.  He  makes  no 
distinction  as  to  the  time  of  division  between  the  mills,  and  the  houses 
and  lands  :  he  did  not  intend  that  there  should  be  two  divisions  of  the 
property,  mentioned  in  the  eighth  clause  ;  all  was  to  be  divided  at  once  : 
and  I  think  it  tolerably  clear,  that  he  looked  to  the  period  of  his  wife's 
death,  as  the  time  at  which  this  division  should  take  place.  From  these 
views,  I  am  satisfied  that  the  mills  and  land  on  which  they  are  erected,  do 
pass  under  the  first  clause  of  the  testator's  will  hereinbefore  set  forth,  to 
his  widow  for  life. 

Johnson  and  Harper,  Js.,  concurred. 

Waddy  ThomjJson,  for  the  appellant. 


46  SOUTH   CAROLINA   EQUITY   REPORTS.  [*51 


Henrietta  C.  Edgerton,  and  others,  vs.   George  W.   Muse  and 
Elizabeth,  his  wife. 

The  Court  will  exercise  the  right  of  correcting  errors  in  its  decrees  in  ex  parte  cases 
and  cases  by  consent,  so  long  as  they  remain  unexecuted :  and  where,  on  a  bill  for 
partition,  an  order  of  sale  was  granted  by  consent  of  parties,  in  which  by  mistake, 
a  slave  belonging  to  one  of  the  parties  and  not  to  the  estate,  was  included  in  the 
property  to  be  partitioned— before  the  sale  was  made,  the  Court  on  a  petition  for 
that  purpose,  corrected  the  error.  [*52] 

The  bill  in  this  case  was  filed  for  partition  of  the  estate  of  Otis  Edger- 
ton, between  the  plaintiffs  and  defendants,  his  heirs  at  law.  By  consent 
of  parties,  a  writ  had  issued  for  the  partition  of  the  estate,  including  a 
slave,  named  Frank.  The  Commissioners  finding  it  impracticable  to 
divide  the  estate,  recommended  a  sale;  and  their  return  being  confirmed, 
the  Commissioner  accordingly  sold  the  Mdiole  estate,  except  Frank,  as  to 
5,,p.g-,  whom  the  order  was,  on  the  ^suggestion  of  the  defendants,  sus- 
-'  pended.  The  defendants  then  filed  a  petition,  setting  forth  that 
the  slave,  Frank,  was  originally  the  property  of  the  petitioner,  Elizabeth, 
before  her  intermarriage  with  Otis  Edgerton  :  that  during  their  cover- 
ture, a  bill  had  been  filed  in  their  joint  names  for  the  recovery  of  the  said 
slave,  and  a  decree  obtained  in  their  favor,  ordering  him  to  be  delivered 
up ;  but  that  Otis  Edgerton  dying  shortly  afterwards,  the  decree  was  not 
enforced  in  his  lifetime  by  the  delivery  of  the  slave  :  that  after  her  mar- 
riage with  the  defendant,  her  present  husband,-  Frank,  was  delivered  to 
them  under  the  decree  ;  and  that  they,  in  ignorance  of  their  rights,  had 
consented  that  he  should  be  partitioned  :  that  as  the  slave  was  not 
reduced  into  possession  by  the  intestate,  he  constitutes  no  part  of  his 
estate,  and  their  consent  being  given  under  a  mistake  as  to  their  rights, 
they  pray  that  the  proceedings  in  partition  be  amended,  by  striking  out 
the  name  of  the  slave  Frank. 

On  the  hearing  of  the  petition  before  Chancellor  Johnston,  at  Barn- 
well, February,  1834,  he  held  that  the  petitioners  were  precluded  by  the 
former  judgment  of  the  Court,  which  he  had  no  power  to  alter.  On 
appeal  from  his  decision,  the  following  decree  was  pronounced  by — 


O'Neall,  J.  In  this  case,  it  seems  to  me  that  the  only  question 
which  we  are  called  upon  to  decide,  is  whether  the  decree  of  confirmation 
of  the  return  of  the  Commissioners  in  partition  precluded  the  defendants 
from  rectifying  the  mistake  in  fact,  as  to  the  slave  Frank. 

I  thiidv  that  there  is  a  material  difference  between  decrees  by  consent 
and  of  course,  and  those  which  are  pronounced  in  invitum.  The  latter, 
it  has  been  held  in  this  State,  are  not  the  subject  of  re-hearing,  and  can 
only  be  reviewed  upon  new  matter  discovered  since  the  decree,  and  of 
which  the  party  applying  for  the  review  could  not  have  the  benefit  in 
the  first  instance,  and  which  newly  discovered  matter  makes  a  new  case, 
and  one  proper  for  Equity  jurisdiction.  Perkins  v.  Lang,  1  M'C.  C. 
30,  note. 

In  the  case  of  Jenkins  ads.  Harrison,  and  Price  u.  ISTesbitt,  1  Hill,  Ch. 
445,  it  has  been  held,  that  as  long  as  anything  remained  to  be  done  by 


*52]  COLUMBIA,   MAY,   1834.  47 

the  Court  in  a  cause,  that  the  previous  decrees  of  the  Court  were  not 
final,  and  that  an  appeal  from  the  last  decree  closing  the  case,  would 
open  all  previous  decrees,  and  bring*  up  the  whole  case  for  *adjudi-  r^r.> 
cation.  I  should  be  inclined  to  think,  under  this  rule,  that  if  this  L 
were  a  decree  in  inritum,  that  it  is  possible  its  errors  might  now  be 
corrected.  For  the  slave  (the  subject  of  the  dispute)  has  not  been  sold ; 
but  the  decree  of  sale  has  been  suspended  by  the  Court.  Be  this,  how- 
ever, as  it  may,  I  think  the  Court  must  exercise  the  right  of  correcting 
its  decrees  in  ex  imrte  cases  and  cases  by  consent,  so  long  as  they  remain 
unexecuted.  For  although  they  purport  to  be  the  act  of  the  Court,  and 
as  such,  have  legal  effect,  yet,  in  point  of  fact,  they  are  the  mere  act  of 
the  parties.  Neither  the  facts  nor  the  law  can  be  said  to  be  judicially 
ascertained  in  such  a  proceeding.  The  only  restriction  upon  the  exercise 
of  this  power  ought  to  be  the  execution  of  the  decree.  It  is  then  that 
the  decree  ought  to  be  regarded  as  final,  and  to  be  an  estoppel  between 
all  parties  and  privies.  It  then  has  the  force  of  a  judgment,  by  either 
vesting  or  divesting  rights ;  and  also  by  operating  as  authority  to  officers 
of  the  Court  acting  under  it,  and  as  title  to  purchasers  who  may  buy 
under  it.  This  restriction  guards  the  power  against  all  possible  abuse. 
The  power  of  correcting  errors  in  such  decrees,  so  long  as  they  remain 
unexecuted,  can  prejudice  no  one  :  it  does  not  require  a  new  examination 
of  testimony,  for  in  such  cases,  most  generally,  no  testimony  is  originally 
heard  ;  there  can,  therefore,  be  no  danger  of  perjury  in  this  respect — 
it  does  not  re-examine  and  defeat  any  established  title,  for  the  consent  of 
the  parties  to  the  decree  is  all  the  evidence  of  title  to  which  the  Court 
has  looked ;  and  the  parties  are  placed  in  no  worse  situation  by  it,  for 
the  consent  must  operate  against  the  party  who  gives  it,  until  he  shows 
that  it  was  given  by  mistake,  and  establishes  a  perfect  title  to  relief 

It  is  ordered  and  decreed,  that  Chancellor  Johnston's  decree  be 
reversed,  and  that  the  petition  of  the  defendants  be  remanded  to  the 
Circuit  Court  for  an  examination  of  the  facts  stated  in  it,  and  for  a 
decree  upon  the  same. 

Johnson,  J.,  concurred. 

Harper,  J.,  absent. 

Patterson,  for  the  appellant. 


Ex  parte,  James  Heard,  Guardian.  [*54 

Under  what  restrictions  the  Court  of  Chancery  may  order  the  funds  of  an  infant 
under  its  control,  to  be  paid  to  a  guardian  appointed  and  residing  in  another 
State.  [*55] 

Barnwell — February,  1834. 

The  petition,  in  this  case,  stated  that  the  petitioner  removed  from  this 
State  to  Georgia,  where  he  was  regularly  appointed  the  guardian  of  the 
persons  and  estates  of  his  children,  who  are  entitled  to  certain  personal 


48  SOUTH    CAROLINA   EQUITY   REPORTS.  [*54 

property  in  this  State,  and  to  moneys  now  in  the  hands  of  the  Commis- 
sioner; and  that  he  has  given  bond  and  security  for  the  proper  discharge 
of  his  duties  :  Tliat  he  is  desirous  of  removing  the  property  of  liis  wards 
to  Georgia,  where  it  can  be  more  profitably  invested  than  in  this  State ; 
and  prays  an  order  of  the  Court,  authorizing  the  same  to  be  paid  and 
delivered  to  him. 

On  the  petition  being  referred  to  the  Commissioner,  he  reported  that 
the  petitioner  was  a  proper  person  to  receive  the  appointment  of  guar- 
dian, that  he  had  given  sufficient  security,  and  that  it  would  be  for  the 
benefit  of  his  wards  to  grant  the  prayer  of  the  petition.  On  the  report 
being  submitted.  Chancellor  Johnston  made  the  following  order  : — 

On  reading  the  petition,  it  was  referred,  that  the  facts  might  come  out, 
in  oi'der  that  the  Court  of  Appeals  might  have  the  whole  matter  before 
them,  and  correct  ray  jndgment  in  rejecting  the  petition,  which  I  felt  that 
I  must  do  for  the  want  of  power  to  transfer  trust  funds  out  of  the  juris- 
diction. At  the  same  time,  I  will  allow  the  petitioner,  upon  security 
here,  to  borrow  the  funds  from  the  Commissioner.  It  is  ordered,  that 
the  petition  be  rejected.  It  is  also  ordered,  that  the  Commissioner  vest 
the  funds  in  his  hands  at  interest,  taking  good  bond  and  security,  and 
that  the  petitioner  have  leave  to  borrow  on  those  terms. 

The  petitioner  now  moved  the  Court  of  Appeals  to  reform  this  order, 
so  as  to  grant  the  prayer  of  the  petition. 

Patterson,  for  the  appellant. 

CNeall,  J.  In  the  ease  ex  ^^arfe  John  Smith,  in  the  matter  of  the 
executors  of  James  Bradshaw,  1  Hill,  Ch.  140,  decided  at  Charleston, 
April  Term,  1833,  an  application,  similar  to  the  present,  was  held  to  be 
within  the  power  of  the  Chancellor. 

^;.r-|  *In  that  case  my  brother  Harper  says,  "  I  have  no  douljt,  on 
-^  principle  and  the  practice  of  the  Court  of  Chancery,  of  the  compe- 
tency of  the  Court  to  order  funds  of  an  infant,  under  its  control,  to  be 
paid  to  a  guardian  appointed  and  residing  in  another  State."  In  pointing 
out  how  an  order  of  transfer  might  be  guarded  against  abuse,  he  suggests 
three  things  to  be  examined  into  and  reported  by  the  Commissioner  : — 
First,  the  fact  of  the  guardian  having  been  regularly  appointed,  according 
to  the  laws  of  the  State  in  which  the  wards  reside;  secondly,  the  fitness 
of  the  guardian  for  his  appointment;  and  thirdly,  whether  sufficient 
security  has  been  given. 

The  two  last  of  these  inquiries  were  made  in  this  case,  under  the  order 
of  the  Chancellor  ;  and  the  Commissioner  reported  in  the  affirmative  on 
each :  he,  also,  under  the  order,  reported  that  it  would  be  for  the  benefit 
of  the  wards  to  make  the  transfer.  The  Chancellor  denied  the  motion  to 
confirm  the  Commissioner's  report,  and  transfer  the  funds,  as  he  says, 
"  for  want  of  power  to  transfer  trust  funds  out  of  the  jurisdiction." 

The  case  cited  shows  that  he  had  the  power  which  he  disclaimed,  and 
his  decree  must  be  reversed.  But,  as  the  Commissioner  did  not  inquire 
into  the  fact,  whether  the  petitioner  had  been  appointed  guardian  of  his 
minor  children,  according  to  the  laws  of  Georgia,  it  will  be  necessary 
that  the  cause  should  go  back  to  the  Circuit  Court,  to  enable  the  Com- 
missioner to  examine  into  that  question  ;  and  while  he  is  doing  that,  he 


*55-] 


COLUMBIA,    MAY,    1834.  49 


may  as  well  re-examine  the  whole  case,  and  report  upon  all  the  points  to 
the  next  Circuit  Court. 

It  is  therefore  ordered  and  decreed,  that  the  Chancellor's  decree  be 
reversed,  and  that  the  cause  be  remanded  with  directions  to  the  Commis- 
sioner to  make  an  examination  of  the  case,  according  to  the  principles 
contained  in  this  opinion,  and  report  upon  the  same  to  the  next  Court 
for  Barnwell  District. 

Johnson,  J.,  concurred. 

Haeper,  J.,  absent. 


*"Wm.  Fryer,  and  wife,  administrator  and  administratrix  of  J,   r-^, 
Harrell,  v.  Brown  Bryan,  and Bigham,  Sherifi".     L  ^^ 

One,  apprehensive  that  a  decree  for  a  large  amount  -would  be  had  against  him,  and 
with  a  Yiew  to  defeat  it,  gave  his  bond  to  the  defendant,  his  son,  for  twenty 
thousand  dollars,  on  which  judgment  was  obtained,  and  moneys  arising  from  the 
sales  of  property  by  the  sheriff  claimed  under  it.  On  a  bill  to  set  aside  the  bond 
and  judgment  as  fraudulent  and  void,  the  defendant  admitted  that  the  sum  of 
three  hundred  and  eighty-two  dollars  was  all  that  was  really  due  to  him,  and 
claimed  that  the  judgment  should  stand  as  a  security  for  that  amount: — I/elJ,  that 
the  defendant,  as  a  party  to  the  fraud,  was  entitled  to  no  favor;  that  the  Court 
would  not  examine  into  the  fraud  to  ascertain  if  any  thing  be  really  due;  and 
the  bond  and  judgment  being  fraudulent  and  void,  the  defendant  should  derive 
no  benefit  from  them.  [*5G] 

Marion — February,  1834, 

The  plaintiffs,  as  creditors  of  Lemuel  Bryan,  filed  this  bill  to  set  aside 
a  judgment  obtained  by  the  defendant.  Brown  Bryan,  against  his  father, 
Lemuel  Bryan,  on  which  funds  arising  from  the  sale  of  his  property  by 
the  sheriff  were  claimed,  charging  the  same  to  be  without  consideration 
and  fraudulent.  The  facts  of  the  case,  and  the  questions  made  in  argu- 
ment, are  fully  stated  in  the  following  Circuit  decree : 

De  Saussure,  Chancellor.  The  real  question  in  this  cause  is,  whether 
the  object  of  the  bond  executed  by  Lemuel  Bryan  to  his  son.  Brown 
Bryan,  and  the  judgment  thereon,  was  to  defeat  and  defraud,  or  delay 
just  creditors  of  their  lawful  demands;  and  if  so,  whether  the  same  be 
void. 

The  condensed  statement  of  the  case  is  as  follows  :  That  Lemuel 
Bryan  being  largely  indebted  to  various  persons,  and  being  under  a])|)re- 
hension  of  a  decree  in  Equity  against  him,  in  a  suit  then  pending  for  a 
considerable  amount,  made  and  executed  a  bond  to  his  son.  Brown 
Bryan,  in  the  penalty  of  $20,000,  with  a  condition  for  the  payment  of 
$10,000  ;  there  was  no  subscribing  witness  to  the  bond.  After  some 
time;  and  before  the  decree  in  equity,  a  suit  was  brought  on  the  bond, 
and  judgment  obtained  thereon,  and  entered  up,  in  the  penalty  of 
$20,000,  and  execution  issued  and  lodged  in  the  sheriff's  office.  No 
steps  were  taken  by  the  son,  Brown  Bryan,  to  enforce  said  execution,  but 
the  same  remained  as  a  lieu  on  the  estate  and  effects  of  Lemuel  Bryan. 


50  SOUTH    CAROLINA   EQUITY    REPORTS.  [*56 

Other  judgments  and  executions  for  smaller  suras  were  enforced,  and 
property  sold,  and  the  money  paid  to  those  creditors,  without  any  inter- 
position on  the  part  of  Brown  Bryan.  A  large  surplus,  arising  from  the 
sales  of  the  property,  was  in  the  hands  of  sheriff  Bigham,  which  still 
remains  there.  I3rown  Bryan,  sometime  after  the  judgment  and  execu- 
^rw-|  tion  and  sales,  caused  an  entry  to  be  made  on  the  execution  *on  his 
-■  judgment,  stating  that  the  sum  of  $382  was  the  only  sum  actually 
due  him  ;  and  it  is  not  pretended  that  any  more  ever  was  due,  nor  has 
that  amount,  or  any  sum  approaching  it,  been  proved  to  be  due  by 
Lemuel  Bryan,  to  his  son.  Brown  Bryan.  Meanwhile,  a  decree  in  Equity, 
for  a  considerable  sum,  had  been  obtained  by  Fryer  and  wife,  as  adminis- 
trators of  J.  Harrell,  in  behalf  of  the  children  of  Harrell,  for  their  interest 
in  the  estate  of  Jacob  Harrell,  whose  estate  had  been  received  and 
unaccounted  for  by  Lemuel  Bryan. 

In  attempting  to  enforce  the  decree,  and  to  procure  the  payment  of  the 
debts  established  in  behalf  of  the  children  who  had  been  injured  by  the 
conduct  of  Lemuel  Bryan,  the  effort  was  resisted  by  setting  up  the  judg- 
ment of  Brown  Bryan  against  Lemuel  Bryan,  as  a  prior  lien,  and  cover- 
ing all  his  property — and  although  an  entry  was  finally  made  on  the 
execution,  that  only  the  sura  of  $382  was  due  on  the  execution,  yet  this 
judgment  has  been  interposed  up  to  this  time,  as  a  shield  to  protect  the 
estate  of  Lemuel  Bryan  against  the  decree  and  the  demand  for  the  money 
due  thereon.  On  a  rule  taken  out,  calling  on  the  sheriff  to  show  cause 
why  so  much  of  the  money  arising  from  the  sale  of  the  estate  of  Lemuel 
Bryan,  as  exceeded  the  $382,  latterly  claimed  for  Brown  Bryan,  reserving 
that  amount  for  discussion  and  decision,  should  not  be  paid  to  the  plain- 
tiffs, that  rule  was  resisted,  and  no  order  could  be  obtained  for  the  pay- 
ment of  such  surplus;  the  return  to  the  rule  must  have  been  of  such  a 
nature  as  to  have  produced  that  effect,  and  that  return  is  not  to  be  found. 
It  has  very  improperly  been  withdrawn  from  the  proceedings  in  the  case, 
and  leaves  it  uncertain  on  what  ground  the  order  proposed  was  then  refused, 
which  now,  on  full  argument  of  the  merits,  is  acquiesced  in.  The  grounds 
taken  in  that  return  made  by  the  sheriff,  in  order  to  have  produced  the 
effect  of  their  defeating  the  rule,  must  have  been  some  acknowledged 
uncertainty  of  what  was  actually  due  on  the  judgment  of  Brown  Bryan. 
The  sheriff's  answer  to  the  bill  relies  on  the  uncertainty,  as  an  excuse  for 
not  paying  the  money;  and  states  that  he  had  received  $2,134,  and  paid 
away  $1,112  on  prior  judgments,  and  had  a  balance  of  $1,022  in  his 
hands  which  he  could  not  pay  over  to  the  plaintiff,  on  account  of  the 
claims  of  the  contending  parties.  It  was  argued  that  the  bond  executed 
by  the  father  to  him  for  $20,000,  was  a  fair  bond  given  to  secure  the 
payment,  not  of  $10,000,  as  is  expressed  on  the  face,  but  of  a  small  sum 
-j;-o-|  alleged  *to  be  bona  fide  due  to  him  by  his  father,  and  some  small 


^58] 


additional  advances  expected  to  be  made  to  him  ;  and  that  it  was 


good  to  secure  and  cover  the  amount  actually  due  him,  and  claimed  to  be 
$382.  It  was  relied  upon,  that  the  answer  of  the  defendant.  Brown 
Bryan,  denying  any  fraud  in  the  transaction,  was  sufficient  to  repel  the 
charge  of  fraud,  and  was  conclusive  in  the  case  of  a  bill  of  discovery. 
This  is  a  bill  for  discovery  and  relief,  and  the  answer  is  contradicted  by 
the  testimony  of  the  witnesses.  They  prove  that  Brown  Bryan  knew  very 
well  that  his  father  did  not  owe  him  a  twentieth  part  of  what  the  bond 


'5S-] 


COLUMBIA,    MAT,    1834.  51 


stipulated  in  tlie  condition  to  pay,  even  if  he  owes  him  anytliing,  (wliich 
has  by  no  means  been  proved  satisfactorily,)  and  that  he  (Brown  Dryan) 
aided  his  father  in  preparing  the  bond  for  this  Gctitious  deljt,  and  wrote 
it  for  hira,  and  has  relied  on  the  judgment  obtained  upon  it,  and  is  set  up 
as  a  screen  to  protect  the  property  of  Lemuel  Brown  from  his  creditors, 
the  plaintiffs.  The  witnesses  prove  that  Brown  Bryan  well  knew  the 
nullity  of  such  a  bond  and  judgment,  and  so  he  stated  to  them. 

Upon  a  careful  review  of  the  circumstances  of  this  case,  I  cannot  have 
a  doubt  of  what  I  am  bound  to  do.  It  was  clearly  a  case  in  wliich  a 
debtor,  apprehensive  of  a  large  debt  being  established  against  him,  in  a 
suit  pending  against  him,  on  behalf  of  orphans,  whose  father's  estate  he 
had  mismanaged,  set  up  a  fictitious  demand  against  himself,  and  gave  it 
the  legal  form  of  a  bond  and  judgment,  expressly  in  order  to  defeat, 
defraud  and  delay  that  just  deraaud ;  it  was  given,  and  has  been  used  for 
that  purpose  ;  and  I  am  bound  to  declare  such  bond,  and  the  judgment 
founded  on  it,  to  be  fraudulent  and  void. 

A  good  deal  of  stress  was  laid,  iu  the  argument,  on  the  character  of 
Brown  Bryan.  It  was  alleged,  and  proved  by  respectable  witnesses, 
entitled  to  perfect  credit,  that  his  character  was  pure,  and  indeed  high  in 
the  estimation  of  his  fellow-citizens  ;  I  am  very  glad  of  it,  as  it  will  \n'o- 
tect  him  from  the  imputation  of  moral  fraud,  even  if  the  circumstances  of 
the  case  should  compel  tlie  Court  to  decide  that  Lemuel  Bryan  committed 
an  actual  fraud,  and  his  son  misled  by  filial  duty,  or  any  other  circum- 
stance, should  be  adjudged  to  have  incurred  the  blame  of  legal  fraud,  by 
lending  his  name  and  character  to  cover  the  attempts  of  his  father  to 
shelter  his  property  from  his  creditors  and  their  just  demands  on  him, 
by  setting  up  a  fictitious  and  enormous  debt,  as  due  by  the  father  to 
"•"the  son.  The  Court  cannot  permit  justice  to  be  entangled  in  such  r^-q 
a  cobweb,  and  where  the  proofs  of  fraud  are  clear,  the  good  charac-  ^ 
ter  of  a  third  person,  who  is  induced  to  lend  his  name  in  the  case,  cannot 
be  allowed  to  prevail  against  them. 

There  is  another  question  remaining  to  be  decided.  It  is  admitted 
that  Brown  Bryan  has  no  such  enormous  demand  on  his  father,  as  the 
sum  conditioned  to  be  paid  in  the  fictitious  bond  for  $10,000;  but  it  is 
contended,  that  at  the  time  the  bond  was  executed,  there  were  some  small 
debts  due  by  the  father  to  his  stripling  son,  amounting  to  about  $124, 
and  that  it  was  intended  to  make  other  occasional  advances  to  the  father, 
to  be  covered  by  the  bond;  and  that,  in  fact,  the  son  did  make  other  ad- 
vances to  the  father,  so  that  the  latter  really  now  owes  the  former  $."]S2 ; 
and  the  son  claims  payment  for  that  amount  out  of  the  fund  in  the  sheriff's 
hands,  as  protected  by  the  bond  and  judgment.  This  claim  is  n-sisted 
by  the  plaintiffs,  on  two  grounds  :  first,  that  it  is  not  shown  that  the  sum 
of  $382  was  really  and  justly  due  by  Lemuel  Bryan  to  his  son  Browa 
Bryan.  Some  proofs  were  given  of  a  small  debt  of  about  $124,  (at  least 
the  answer  states  that)  beyond  this  no  debt  was  proved.  The  second 
objection  made  by  the  plaintiSs  is,  that  the  defendant,  Brown  Bryan, 
having  mingled  whatever  amount  of  fair  claim  he  had  on  the  father,  in 
the  fraudulent  transaction  of  his  father,  cannot  be  permitted  to  protect, 
under  that  fraudulent  bond  and  judgment  which  are  null  and  void,  even 
what  may  be  really  due  to  him,  and  therefore  he  stands  merely  on  the 
footing  of  a  simple  contract  creditor. 


52  SOUTH   CAROLINA   EQUITY   REPORTS.  [*59 

Thls'qnestion  has  come  before  the  Court  in  several  cases:  In  Miller 
V.  Tolleson,  and  others,  (Harper's  Eq.  Rep.  145),  I  decided  that  the 
transactions  were  fraudulent  and  void  ;  but  that  B.  Holder,  having  some 
just  claims  on  Tolleson,  the  conveyance  of  the  land  should  stand  as  a 
security  for  what  might  be  found  to  be  justly  due  to  him  :  the  then  Court 
of  Appeals  affirmed  the  decree,  except  so  far  as  respected  the  debt 
alleged  to  be  justly  due  Holder ;  but  reserved  that.  Chancellor  Gail- 
lard,  who  delivered  the  opinion  of  the  Court  of  Appeals,  stated  that  the 
decree  must  be  supported  as  far  as  it  decides  against  the  defendant. 
But  the  Court  was  of  opinion  "that  the  decree  did  not  go  far  enough. 
It  orders  the  deed,  made  by  Tolleson,  conveying  the  land  to  Holder,  for 
the  nominal  consideration  of  $20,000,  should  stand  as  a  security  for  such 
^„^-]  balance  as  might  be  found  to  be  bona  Jide  due  by  J.  Tolleson  *to 
-I  Holder.  The  Court  was  of  opinion,  that  although  there  might  be 
something  due  by  Tolleson  to  Holder,  the  latter  is  not  entitled  to  the  benefit 
of  the  conveyance,  as  a  security  for  what  may  be  found  due,  because  the 
deed  making  an  absolute  conveyance  by  Tolleson  to  Holder  for  a  large 
nominal  price,  was  intended  as  a  fraud  to  cover  his  property  from  his 
creditors  ;  and  as  Holder  lent  his  name  to  this  fraud,  he  ought  not  to  derive 
any  benefit  from  it.  The  deed  must  therefore  be  considered  void,  and 
Holder  must  be  allowed  to  pursue  his  remedy  against  Tolleson,  if  there 
be  anything  due  to  him,  which  is  at  least  doubtful."  It  appears  to  me 
that  this  decision  is  conclusive  in  the  case  we  are  considering,  unless 
later  decisions,  made  by  the  Court  of  Appeals,  should  have  reversed  it 
and  changed  the  law. 

I  am  told  that  in  a  case  in  Lancaster,  of ,(a)  decided  by  me,  I 

followed  out  the  principle  established, '  as  above  stated,  and  decreed 
according  to  the  decision  in  Miller  v.  Tolleson ;  but  that  the  Court  of 
Appeals,  in  affirming  the  decree  generally,  did  let  the  security  stand  for 
as  much  as  really  had  been  paid.  I  was  not  furnished  with  a  copy  of  the 
decree  of  the  Court  of  Appeals,  nor  do  I  know  the  grounds  of  the 
decision.  But  I  am  satisfied  that  there  must  have  been  something  pecu- 
liar in  that  case,  which  made  an  exception  proper,  and  that  the  Court 
did  not  mean  to  set  aside  the  principle  in  Miller  v.  Tolleson,  which  I 
consider  a  very  salutary  one  to  discourage  frauds  of  this  kind. 

It  is  therefore  ordered  and  decreed,  that  the  bond  of  Lemuel  Bryan  to 
Brown  Bryan,  for  the  very  large  penalty  of  $20,000,  (conditioned  to  pay 
$10,000)  when  there  was  nothing  really  due  but  a  very  trifling  sum,  and  that 
not  satisfactorily  proved,  being  made  to  delay,  defeat  and  defraud  credi- 
tors, is  fraudulent  and  wholly  void ;  and  it  is  further  ordered,  that  the 
defendant,  sheriff  Bigham,  do  immediately  pay  over  to  the  plaintiffs  the 
whole  amount  of  money  remaining  in  his  hands,  arising  from  the  sale  of 
the  property  of  Lemuel  Bryan — costs  to  be  paid  by  the  defendant. 
Brown  Bryan. 

From  this  decree,  the  defendant.  Brown  Bryan,  appealed  on  the 
ground  : — 

That  the  Chancellor  should  have  decreed  the  judgment  to  be  valid  to 
the  amount  of  $382,  the  sum  claimed  to  be  due. 

(a)  Probably,  Brown  v.  McDonald,  1  Hill  Ch.  297 ;  which  does  not,  however, 
sustain  the  position  here  contended  for.  E. 


*61]  COLUMBIA,   MAY,    1834.  53 

"^Graham,  for  the  appellant,  cited  2  Poth.  150-8;  13  Yes.  4Y  ; 
2  John.  Ch.  89;   1  M'C.  Ch.  44(» ;  2  M'C.  Ch.  102;   1  Yes.  sen'r,  L*''l 
3T;  1  John.   Ch.   482;   4  John.   Rep.  536,  598-9;   1  Eq.   Rep.   ICT; 
1  M'C.  Ch.  265. 

Moses,  contra. 

Johnson,  J.  The  fact  that,  the  bond  and  judgment  were  intended  as 
a  fraud  on  the  creditors  of  Lemuel  Bryan,  is  ascertained  by  the  Chan- 
cellor's decree,  and  is  fully  sustained  by  the  evidence  :  and  as  a  party  to 
that  fraud,  the  defendant,  Bryan,  is  entitled  to  no  favor.  We  concur, 
therefore,  with  the  Chancellor,  that  the  judgment  ought  not  to  stand  as 
a  security  for  what  may  be  due.  The  Court  was  not  bound  to  disen- 
tangle a  web  of  fraud  of  his  own  manufacture,  to  ascertain  that  there  may 
have  been  some  good  material  mixed  up  with  it. 

Motion  dismissed. 

O'jS^eall,  J.,  concurred. 


Sharod  Sims,  Jr.,  vs.  John  Sims,  Adm'r  cum  test.  ann. 

The  plaintiff  had  paid  one  hundred  dollars  to  testator  in  part  price  of  a  negro;  after 
testator's  death,  six  out  of  eight  of  the  residuary  legatees,  gave  their  bond  to  the 
administrator  with  the  will  annexed  relinquishing  their  interest  in  the  one  liundred 
dollars,  and  authorizing  the  paj'ment  of  their  shares  therein  to  the  plaintiff:  — 
Held,  that  the  bond  was  an  assignment  of  their  interest  in  that  fund  to  the 
plaintiff, — that  this  was  an  equitable  and  not  a  legal  demand,  and  the  statute  of 
limitations  did  not  apply  to  it:  that  this  claim  arises  not  under  the  will,  but  on 
the  assignment,  and  a  receipt  for  'his  dividend'  applies  to  his  share  under  the 
•will,  and  does  not  preclude  the  plaintiff.  [*62] 

The  administrator,  will  not  in  such  case  be  discharged,  on  the  ground  that  he  h;»'3 
no  assets  in  his  hands  in  consequence  of  the  legatees  having  purchased  at  his 
sale  more  than  the  amount  of  their  shares.  [*62] 

Lancaster — Before  Chancellor  Johnston. 

This  bill  was  filed  against  the  defendant  for  an  account  of  his  adminis- 
tration, claiming  amongst  other  things  for  the  plaintitf,  the  sum  of  one 
hundred  dollars,  under  the  circumstances  detailed  in  the  following  judg- 
ment of  this  Court.  The  statute  of  limitations  being  pleaded,  the 
Chancellor  held,  that  it  barred  the  demand,  and  that  the  evidence  olfcrcd 
for  that  purpose  was  not  sufficient  to  take  it  out  of  the  statute  ;  and  an 
appeal  was  taken  from  his  decision  on  this  point. 

Harper,  J.  "With  respect  to  the  first  question,  the  statement  is,  that 
the  testator  by  his  will  gave  to  the  plaintiff  a  negro  boy,  John  ;  which 
boy  the  plaintiff  afterwards  purchased  of  the  testator  in  his  lifetime,  at 
the  price  of  five  hundred  dollars;  paid  one  hundred  *dollars  in  p^^ 
cash,  and  gave  his  promissory  notes  for  four  hundred  dollars. 
After  testator's  death,  six  out  of  the  eight  residuary  legatees  of  the  estate 
entered  into  a  bond  to  the  defendant,  the  administrator,  reciting  those 
YoL.  I.— 27 


54  SOUTH    CAROLINA    EQUITY    REPORTS.  [*62 

facts  and  conditioned  that  they  "shall  relinquish  and  quit  claim  to  any 
interest  which  they  may  have  in  and  to  the  said  negro,  John,  and  to  the 
said  notes,  and  shall  authorize  and  give  full  liberty  to  the  said  John  Sims 
to  pay  to  the  said  Sharod  Sims,  jr.,  the  sum  of  one  hundred  dollars,  being 
the  amount  in  part  which  he  paid  for  the  said  negro,  John,  and  to  deliver 
into  the  possession  of  the  said  Sharod  Sims,  jr.,  the  said  notes  and  the 
said  negro,  John,  and  shall  save  harmless  the  said  John  Sims  for  the  said 
transaction."  The  negro  and  the  notes  were  delivered,  the  hundred  dol- 
lars remain  unpaid. 

We  concur  with  the  Chancellor,  that  by  this  bond  the  plaintiff"  became 
the  assignee  of  the  obligors  and  entitled  to  their  respective  interests  in 
the  funds  as  far  as  one  hundred  dollars.  They  stipulate  to  relinquish 
and  quit  claim  their  interest  to  that  extent  to  the  plaintiff",  and  Equity 
regards  that  as  done,  which  ought  to  be  done. 

We  concur,  of  course,  with  the  Chancellor  in  his  conclusion  on  the 
facts,  that  no  express  promise  of  the  defendant  to  pay  this  amount  was 
proved  either  within  four  years  before  the  filing  of  the  bill  or  at  any 
other  time, 

But  we  do  not  concur  that  this  was  a  legal  demand  to  which  the  statute 
of  limitations  could  apply.  Regarding  the  bond  as  an  assignment  to 
plaintiff,  it  transferred  only  an  equitable  interest,  and  his  remedy  was 
only  in  Equity.  In  general  a  mere  equity  will  not  be  barred  in  less  than 
twenty  years.  Before  the  bond,  defendant  was  a  trustee  as  to  this  fund 
for  the  residuary  legatees,  and  the  bar  of  the  statute  would  not  apply 
to  them.  By  the  assignment,  the  plaintiff  was  put  in  the  place  of  the 
residuary  legatees,  and  by  accepting  the  bond,  the  defendant  made  him- 
self a  trustee  for  him. 

It  was  urged  that  the  defendant  would  not  be  charged,  on  the  ground 
of  not  having  assets  in  his  hands,  several  of  the  legatees  having  purchased 
property  of  the  estate  for  more  than  the  amount  of  their  shares.  But 
their  debts  to  him  for  these  purchases  must  be  regarded  as  assets.  It  is 
in  his  power  to  recover  these.  He  knew  of  the  state  of  things  when  the 
arrangement  was  made,  and  he  accepted  the  bond,  and  must  have  looked 
to  the  bond  for  his  indemnity. 

*fisn  *Nor  do  I  think  there  was  such  an  acquiescence  as  will  preclude 
-'  the  plaintiff".  He  gave  defendant  a  receipt  for  his  "dividend"  of  the 
estate.  The  obvious  interpretation  of  this,  is  such  proportion  of  the  estate 
as  he  was  entitled  to  under  the  will.  But  this  claim  does  not  arise  under 
the  will,  but  on  the  assignment.  He  may  have  known  that  defendant  had 
distributed  the  estate,  reserving  nothing  to  meet  this  claim.  But  he  does 
not  appear  to  have  sanctioned  this  otherwise  than  by  silence ;  and  he  may 
have  been  silent  as  to  what  was  past  and  what  he  could  not  prevent. 

Decree  for  the  plaintiff". 

Johnson  and  O'Neall,  Js.,  concurred. 
Clinton,  for  the  appellant. 
Blanding,  contra. 


*63]  COLUMBIA,  MAY,   1834.  55 


Daniel  Matheney  and  Sarah  Ann  Matheney  vs.  John  Guess  and 
David  Felder,  Executors,  and  others. 

The  huslmnd's  assignment  of  Lis  Tvife's  chose  in  action  passes  her  interest  only 
where  he  has  the  power  to  reduce  it  into  possession ; — and  where  he  has  this 
power,  his  assignment  will  be  regarded  as  a  reduction  into  possession :  but  where 
he  has  not  the  power  of  reducing  into  possession,  his  assignment  does  not  transfer 
the  property,  until  bj'  subsequent  events  he  comes  into  the  situation  of  being  able 
to  reduce  it  into  possession  ;  and  then  the  previous  assignment  will  operate  on 
his  actual  situation,  and  the  property  will  be  transferred.  [*GG] 

In  England  the  husband  may  acquire  the  absolute  right  to  his  wife's  chose  in  action, 
even  after  her  death,  by  administration  ;  hut  the  rule  is  different  in  this  State, 
for  under  our  statute  of  distributions,  he  would  only  be  entitled  to  his  distributive 
share  as  her  heir  at  law.  [*G9] 

Where  the  wife  was  entitled  to  an  estate  expectant  on  the  death  of  her  mother  and 
during  the  lifetime  of  the  wife  and  the  tenant  for  life,  the  husband  for  a  valuable 
consideration,  conveyed  his  wife's  interest  in  the  estate,  and  she  died  before  the 
death  of  the  tenant  for  life: — Held,  that  the  assignment  of  the  husband  operated 
only  to  the  extent  of  his  own  share  of  his  wife's  estate  under  the  Act  of  distribu- 
tions, and  did  not  defeat  the  rights  of  her  children  to  the  remainder.  [*70] 

John  Guess,  the  maternal  grandfather  of  plaintiffs,  devised  and  be- 
queathed both  his  real  and  personal  estate  to  his  wife  for  life,  and  after 
her  death  to  be  divided  amongst  his  children,  of  whom  Rachel,  the  mother 
of  the  plaintiffs,  and  wife  of  John  Matheney,  was  one.  During  the  life- 
time of  his  wife,  and  of  her  mother,  the  tenant  for  life,  John  Matheney, 
for  a  valuable  consideration,  sold  and  assigned  all  the  interest  which  he 
had  in  tiie  estate  in  consequence  of  the  bequest  to  his  wife,  to  Patrick 
Quartermus.  The  wife  of  Matheney  died,  and  after  her  death,  the  tenant 
for  life  surrendered  the  estate,  and  procured  a  division  of  it  to  be  made 
by  the  executors  to  the  will.  The  executors,  in  consequence  of  the 
assignment,  delivered  to  Quartermus  two  slaves,  on  account  of  Mrs. 
Matheney 's  legacy.  The  plaintiffs  claim  two-thirds  of  this  property  as 
distributees  of  their  mother — they  pray  an  account  against  the  executors 
— that  their  father,  the  executors,  and  Quartermus  may  be  made  liable — 
and  for  partition  and  relief. 

*Harper,  J.,  [sitting  as  Chancellor.]  It  is  not  disputed  that,  j-^g^ 
according  to  the  English  authorities,  the  assignment  by  the  husband  •- 
would  be  good,  inasmuch  as  he  survived  his  wife.  But  it  is  supposed  that 
this  is  only  because  the  husband  surviving  the  wife,  in  England,  is  entitled 
to  her  whole  personal  estate,  and  does  not  apply  under  our  statute  of  dis- 
tributions, where  the  children  are  entitled  along  with  him.  The  familiar 
distinction,  however,  which  has  not  been  adverted  to,  is  entirely  conclu- 
sive. If  a  husband  make  a  voluntary  assignment  of  his  wife's  chose  in 
action,  this  will  not  bind  her  in  case  she  survives  him  ;  if  it  be  for  valuable 
consideration,  however,  she  will  be  bound.  Burnett  v.  Kinnaston,  2  \  eru. 
401;  Carteret  v.  Paschal,  3  Pr.  Wms.  19Y;  Bates  v.  Dandy,  2  Atk.  207. 
To  the  same  effect  was  the  decision  of  our  own  Court  of  Equity  in  For- 
rest 1'.  Warrington,  2  Eq.  Rep.  254. 

The  husband's  assignee,  however,  is  subject  to  this  disability,  tliat  if  he 
is  under  the  necessity  of  coming  into  Equity  to  make  his  claim  effectual, 


56  SOUTH    CAROLINA   EQUITY    REPORTS.  [*64 

Equity  will  not  aid  him  but  on  the  condition  of  his  making  a  proper 
provision  for  the  wife. 

When  the  Master  of  the  Rolls,  in  White  v.  St.  Barl)e,  1  Yes.  &  B.  405, 
says  that  a  husband  can  dispose  of  such  property  of  his  wife  in  expectancy, 
against  every  one  but  the  wife  surviving,  he  speaks  in  reference  to  a 
voluntary  settlement  which  the  husband  had  made.  In  this  case  there  is 
r.o  doubt  but  that  the  assignment  was  for  valuable  consideration.  Quar- 
termus  has  not  come  into  this  Court  seeking  the  property,  but  has  it  in 
possession. 

It  is  therefore  ordered  and  deci*eed  that  the  bill  be  dismissed. 

From  this  decree  the  plaintiffs  appealed  on  the  ground  : 

That  the  plaintiffs  are  entitled  to  two-thirds  of  their  mother's  part  of 
her  father's  estate ;  and  an  account  and  distribution  should  have  been 
accordingly  decreed. 

PaUer^on,  for  the  appellants.  If  no  assignment  had  been  made  by 
Matheney,  on  the  death  of  his  wife,  he  would  have  been  entitled  to  only 
one  third  of  her  estate.  How  then  can  the  assignment  convey  a  larger 
interest  than  he  would  have  without  it  ?  For  the  mere  act  of  assign- 
ment is  not  a  reducing  into  possession,  when  he  had  no  righ't  to  posses- 
sion. The  English  authorities  agree,  that  the  assignee  has  the  rights  of 
the  husband  and  no  more — and  it  will  not  be  denied  that  an  assignee, 
even  for  valuable  consideration,  can  resist  the  wife's  right  to  a  settlement, 
^p,-,  Like  V.  Beresford,  3  Ves.  411  ;*  McCauley  v.  Philips,  4  Yes.  19; 
•^  -I  Salisbury  v.  INTewton,  1  Eden,  370 ;  4  Yes.  515.  The  effect  of 
such  an  assignment  is  a  question  not  decided  in  any  reported  case  in  this 
State.  In  Forrest  v.  Warrington,  2  Eq.  Rep.  254,  the  husband  had  the 
right  to  possession  ;  the  marital  rights  had  attached  by  the  act  of  assign- 
ment. It  has  no  application  to  this  case.  It  can  be  shown  on  principle 
and  authority,  that  if  the  wife  in  this  case  had  outlived  her  husband,  her 
interest  as  survivor  would  prevail  against  the  assignment :  and  it  follows, 
therefore,  that  the  assignment  is  void  so  far  as  the  interest  of  the  plaintiffs 
is  concerned.     Burnet  v.  Kinnaston,  2  Yern.  401. 

The  cases  cited  sustain  this  position  :  That  where  the  husband  assign 
the  wife's  estate  vested  in  interest,  but  expectant  on  the  death  of  a  tenant 
for  life,  to  a  purchaser  for  valuable  consideration,  and  the  wife  and  tenant 
for  life  outlive  the  husband,  the  wife  is  entitled  by  right  of  survivorship ; 
but  if  the  husband  survive,  the  assignee  will  take.  The  reason  is,  that 
equity  considers  the  assignment  as  an  agreement  by  the  husband  that  he 
will  reduce  the  property  into  possession — and  that  what  a  party  agrees  to 
do  shall  be  considered  as  done  :  and  therefore,  when  the  husband  has  the 
power  of  reducing  into  possession,  his  assignment  will  be  regarded  as  a 
reduction  into  possession.  On  the  other  hand,  when  the  husband  has  not 
the  power  or  right  of  reducing  the  choses  into  possession,  his  assignment 
will  not  transfer  the  property  until  by  some  subsequent  event  he  acquires 
the  right  to  reduce  into  possession,  and  then  his  previous  assignment  will 
operate,  and  the  property  be  transferred.  TTonner  v.  Morton,  3  Russ. 
Ch.  65;  3  Cond.  Eng.  'Ch.  Rep.  298;  Hornsby  v.  Lee,  2  Mad.  16; 
Purdew  v.  Jackson,  1  Russ.  Ch.  1  ;  Pierce  v.  Thornely,  2  Sim.  167  ;  2 
Cond.  Eng.  Ch.  Rep.  364.  In  England  the  law  gives  the  husband  the 
right  to  his  wife's  choses  after  her  death,  by  administration  :  and  there 


*65]  COLUMBIA,  MAT,    1834.  57 

such  an  assignment  as  this  would  operate.  But  the  law  is  difforcnt  in 
this  State ;  for,  by  our  statute  of  distributions,  he  takes  only  his  sliare 
as  heir-at-law.  In  this  case  the  tenant  for  life  survived  the  wife,  the 
husband  had  no  right  to  the  possession,  and  therefore  could  not  reduce 
into  possession  during  coverture  ;  and  on  the  death  of  the  wife,  he  is 
only  entitled  to  his  share  under  the  statute,  which  is  all  that  the  assign- 
ment can  operate  on. 

^Elmore,  for  the  defendants,  contended,  that  Mrs  Matheney  took  r:)././> 
a  vested  interest  under  the  will  which  her  husband  could  convey,  and  ^  * 
that  his  assignment  would  be  valid  against  every  one  but  the  wife  sur- 
viving ;  and  he  cited  and  relied  on  the  following  authorities  :  AVliite  v. 
St.  Barbe,  1  Ves.  and  B.  405  :  Chit.  Dig.  507  ;  Wildraan  v.  Wildmau, 
9  Ves.  177  ;  Hawkins  v.  Bryant,  2  Atk.  549  ;  Bates  v.  Dandy,  2  Atk. 
208;  Chit.  Dig.  509  ;  Ripley  v.  Wood,  2  Sim.  165  ;  Fitzer  o.  Fitzer,  2 
Atk.  511 ;   Sansum  v.  Dewar,  3  Buss.  Ch.  91. 

O'jSTeall,  J.  There  is  no  doubt  that  the  plaintiffs  are  entitled  to  have 
partition  of  the  testator's  real  estate,  and  an  account  of  whatever  sum  still 
remains  in  the  hands  of  the  executors  of  the  testator  to  which  their  de- 
ceased mother  was  entitled.  That  the  Circuit  decree  did  not  make  pro- 
vision for  these  interests,  arose  from  the  fact  that  the  effect  of  the  husband's 
assignment  of  his  wife's  chose  in  action,  appeared  to  be  the  only  matter 
in  controversy. 

It  is  now  necessary  to  examine  the  Circuit  decree  in  relation  to  that 
matter.  I  agree  generally  with  ray  brother  Harper,  that  the  husband 
may  assign  the  wife's  chose  in  action,  and  that  she  would,  if  it  was  for  a 
valuable  consideration,  be  bound  by  it.  But  this  concession  of  a  general 
rule  must  be  taken  as  subject  to  a  qualification  and  exception,  which  is,  I 
think,  very  well  stated  by  the  Lord  Chancellor  :  in  the  case  of  Ilonner  v. 
Morton,  3  Russ.  65,  and  3  Cond.  Eng.  Chan.  Rep.  298,  he  says,  "When 
the  husband  assigns  the  chose  in  action  of  his  wife,  one  would  suppose  on 
the  first  impression,  that  the  assignee  would  not  be  in  a  better  situation 
than  the  assignor;  and  that  he  too  must  take  some  steps  to  reduce  the 
subject  into  possession,  in 'order  to  make  his  title  good  against  the  wife 
surviving.  But  equity  considers  the  assignment  by  the  husband  aa 
amounting  to  an  agreement  that  he  will  reduce  the  property  into  pos- 
session ;  it  likewise  considers  what  a  party  agrees  to  do  as  actually  done; 
and,  therefore,  where  the  husband  has  the  power  of  reduciufj  the  pro- 
perty  into  possession,  his  assignment  of  the  chose  in  action  of  the  wife 
icill  be  regarded  as  a  reduction  of  it  into  possession.  On  the  other 
hand,  I  should  also  infer,  that  ivhen  the  husband  has  not  the  power  of 
reducing  the  chose  in  action  into  possession,  his  assignment  does  not 
transfer  the  property  till,  by  subsequent  events  he  comes  into  the  situa- 
tion of  being  able  to  reduce  the  property  into  possession;  and 
*the7i  his  previous  assignment  will  operate  on  his  actual  situa-  r^g-j 
tion,  and  the  property  will  be  transferred." 

The  Chancellor,  in  that  case,  after  a  very  elaborate  examination  of  all 
the  authorities,  in  which  he  showed  clearly  and  conclusively  that  this 
qualification  and  exception  was  well  sustained  by  direct  autiiority,  and 
that  it  was  not  opposed  by  any  express  adjudication,  although  several 


58  SOUTH    CAROLINA    EQUITY    REPORTS.  [*67 

dicta  would  appear  to  conflict  with  it,  held,  that  the  vested  interest  of  a 
wife  in  remainder  after  a  life  estate,  which  had  been  assigned  by  husband 
and  wife  for  a  valuable  consideration  did  not  pass  under  the  assignment, 
inasmuch  as  the  husband  died  during  the  life  estate,  leaving  his  wife  sur- 
V  viving;  and  the  estate  in  remainder  to  the  wife  could  not,  therefore,  have  been 
reduced  into  possession  by  him.  A  difl'erent  result  would  have  taken 
place  if  the  wife  had  died  and  the  husband  had  survived  the  termination 
of  the  life  estate :  in  such  a  case,  by  the  law  of  England,  he  would  have 
been  entitled  to  the  administration  of  his  wife's  estate,  and  by  such  admin- 
istration he  would  have  become  the  legal  owner  of  her  choses  in  action 
without  any  liability  to  account  for  the  same  to  her  heirs.  This  would, 
in  this  last  mentioned  case,,  have  made  his  assignment  effectual,  on  the 
ground  "that  he  had  the  power  to  reduc^,  the  chose  in  action  into  pos- 
session,'' for  his  own  use. 

In  the  case  of  Purdew  v.  Jackson,  1  Russell,  1,  it  was  ruled  that 
"  where  husband  and  wife  by  deed  executed  by  both,  assign  to  a  purchaser 
for  valuable  consideration  a  moiety  of  a  share  of  an  ascertained  fund,  in 
which  the  wife  has  a  vested  interest  in  remainder  expectant  on  the  death 
of  a  tenant  for  life  of  that  fund,  and  both  the  wife  and  tenant  for  life  out- 
live the  husband,  the  wife  is  entitled  by  right  of  survivorship  to  claim  the 
whole  of  her  share  of  the  fund  against  such  particular  assignee  for 
valuable  consideration." 

In  the  same  case,  (at  page  80,)  Sir  Thomas  Plumer,  the  Master  of  the 
Rolls,  stated  the  result  of  his  elaborate  examination  to  be,  that  "all  as- 
signments made  by  the  husband  of  the  wifi^'s  outstanding  personal  chat- 
tel, which  is  not  or  cannot  be  then  reduced  into  possession,  whether  the 
assignment  be  in  bankruptcy  or  under  the  insolvent  acts,  or  to  trustees 
for  the  payment  of  debts,  vr  to  a  purchaser  for  valuable  consideration, 
pass  only  the  interest  which  the  husband  has,  subject  to  the  wife's  legal 
right  by  the  survivorship." 

These  two  well  considered  English  cases,  must  certainly  be  regarded  as 

^„Q-.  settling  conclusively,  that  the  husband's  assignment  can  only  ^operate 

-'  to  pass  the  interest  of  the  wife  in  her  chose  in  action,  when  he  had 

or  has  the  power  to  reduce  it  into  possession  for  his  own  use  ;  if  he  never 

has  any  such  power,  his  assignee  can  have  no  rights. 

The  previous  English  cases,  it  appears  to  me,  so  far  as  I  have  had  the 
opportunity  to  examine  them,  may  be  very  well  reconciled  with  this 
qualification  and  exception.  They  generally  relate  to  bonds  and  mort- 
gages in  the  actual  possession  of  the  husband,  or  to  legacies  to  the  wife 
which  are  due  and  payable  in  2^resenli,  or  become  due  and  payable  dur- 
ing the  continuance  of  the  coverture.  In  all  these  cases  it  will  be  seen 
that  the  husband  has  the  right  and  power  to  reduce  the  chose  in  action 
of  the  wife  into  possession  for  his  own  use,  and  hence  his  assignment  has 
effect. 

The  case  of  Bates  v.  Dandy,  (reported  more  fully  and  accurately  in  a 
note  to'Honner  v.  Morton,  3  Cond.  Eng.  Ch.  Rep.  301,  than  it  is  in 
Atkins,)  was,  where  the  husband  was  in  the  actual  possession  of  the 
mortgages  which  had  been  set  apart  as  his  wife's  share  of  her  deceased 
brother  John  Dyer's  estate,  but  which  were  not  assigned  by  the  executor 
during  the  lifetime  of  the  husband  :  tlie  husband  assigned  them  to  secure 
a  sum  of  £200  borrowed  from  the  plaintiff's  intestate:  it  was  held,  by 


*68] 


COLUMBIA,    MAY,    1834.  59 


Lord  Hardwicke,  that  the  assignment  was  a  valid  assignment  of  the 
mortgages,  as  the  wife's  chose  in  action,  and  that  unless  she  redeemed  by 
paying  the  amount  borrowed,  with  interest  and  costs,  that  the  assignment 
should  become  absolute.  There  can  be  no  doubt  that  that  case,  which  is 
a  leading  one,  is  plainly  reconcileable  with  the  cases  of  Honner  v  Mor- 
ton and  Purdew  v.  Jackson.  The  husband  there  could  have  reduced  the 
chose  in  action  into  possession  during  his  life  ;  for  he  could  have  com- 
pelled John  Dyer's  executor  to  have  assigned  to  him,  and  under  his 
assignment  have  foreclosed  the  mortgages  and  received  the  amount 
secured  to  be  paid  by  them. 

In  the  case  of  White  v.  St.  Barbe,  1  Yes.  &  B.  405,  the  Master  of  the 
Rolls,  Sir  William  Grant,  speaking  of  an  interest  of  a  feme  covert  in 
remainder  after  the  death  of  a  tenant  for  life,  whifth  had  been  settled  by 
her  husband  to  the  use  of  their  children  after  the  death  of  the  tenant  for 
life,  said,  "  A  husband  can  dispose  of  such  property  of  his  wife  in  expect- 
ancy, against  every  one  hut  the  wife  surviving ;  and  this  is  just  such'a 
settlement  as  the  Court  would  have  directed."  In  that  case  the  wife  died 
in  the  lifetime  of  the  tenant  for  life,  and  the  husband  took  out  ad-  r^nn 
ministration*  upon  her  estate.  The  fact  of  the  husband's  surviv-  L 
orship  and  administration,  according  to  the  law  of  England,  would  have 
entitled  him  to  reduce  his  wife's  chose  in  action  into  possession  for  his 
own  use,  and  hence  his  assignment  or  settlement  of  it  was  legal  and  valid. 

The  case  of  Forrest  v.  Warrington,  2  Eq.  Rep.  254,  is  the  only 
reported  case  in  this  State  on  the  subject ;  it  was  the  case  of  an  assign- 
ment for  valuable  consideration,  of  the  Bank  stock  of  the  wife  by  the 
husband.  The  husband  had  the  legal  possession  of  the  stock,  and  it  was 
on  that  ground  his  assignment  was  sustained  ;  for  Chancellor  James, 
who  delivered  the  decree  of  the  Court,  (at  page  2G1,)  says,  "After  the 
marital  rights  had  attached,  it  only  remained  for  the  husband  to  reduce 
the  jirojoerty  into  possession,  to  be  able  in  laio  to  assign  the  same ;  and 
this,  it  appears,  he  did  by  exercising  acts  of  ownership  over  it ;  first,  by 
receiving  the  dividends  for  three  years  ;  second,  by  depositing  the  certi- 
ficates for  the  same  in  the  Charleston  Insurance  Company  ;  and  third, 
by  assigning  the  same  to  the  defendant."  So  far  as  that  case  is  to 
operate  as  authority,  it  unquestionably  does  not  militate  against  the 
qualification  and  exception  which  is  stated  by  the  Lord  Chancellor  in 
the  case  of  Honner  v.  Morton. 

According  to  that  qualification  and  exception,  it  is  plain  that  in  this 
case,  if  the  wife  had  survived  the  husband,  his  assignment  would  not 
have  defeated  her  rights  in  remainder  after  the  death  of  her  mother. 
Does  her  death  vary  the  case  ?  It  is  clear,  that,  in  this  State,  it  does 
not.  The  husband's  administration  would  not  entitle  him  to  reduce  her 
chose  in  action  into  possession  for  his  own  use.  His  only  interest  is  as 
one  of  his  wife's  distributees.  The  twelfth  section  of  the  Act  of  Dis- 
tributions, (1791,)  1  Brev.  Dig.  Tit.  101,  p.  424,  directs  that,  "on  the 
death  of  any  married  woman,  the  husband  shall  be  entitled  to  the  same 
share  of  her  real  estate,  as  is  herein  given  to  the  widow  out  of  the  estate 
of  the  husband,  and  the  remainder  of  her  real  estate  shall  be  distributed 
among  her  descendants  and  relatives  in  the  same  manner  as  is  heretofore 
directed,  in  case  of  the  intestacy  of  a  married  man."  The  fourteenth 
section  provides,  "  that  in  all  cases  of  intestacy  the  personal  estate  shall 


*T0] 


60  SOUTH    CAROLINA   EQUITY   REPORTS.  [*69 

be  distributed  in  the  same  manner  as  real  estates  are  disposed  of  by  this 
Act."  Looking  back  to  the  third  section,  it  will  be  seen  that  it 
establishes  the  rule  of  distribution  of  an  intestate's  estate  when  he  dies 
leaving  a  widow  and  children,  to  be  *one-third  to  the  wife,  and 
the  remainder  to  be  divided  among  the  children.  According  to 
the  provisions  cited,  the  real  and  personal  estate  of  the  wife,  dying  intes- 
tate, is  to  be  divided  in  the  same  manner  as  that  of  the  husband.  So 
that  John  Matheney,  on  the  death  of  his  wife,  was  only  entitled  to  one- 
third  part  of  her  real  and  personal  estate.  His  assignment  of  her  interest 
in  remainder,  after  her  mother's  death,  could  only  convey  his  distributive 
share  of  it  as  his  wife's  heir  at  law,  for  during  her  life-time  he  could  not 
reduce  it  into  possession  ;  and  at  her .  death  it  was  her  estate,  to  be 
administered  after  the  termination  of  the  life  estate,  and  distributed 
according  to  the  Act  of  1791.  His  assignee  (Quartermus,)  could,  at 
most,  only  have  the  right  to  administer  on  Mrs.  Matheney's  estate;  and 
as  her  administrator,  he  could  only  retain  to  his  own  use  the  share  of  her 
husband  under  his  assignment ;  the  remainder  he  would  be  bound  to  pay 
over  to  her  distributees.  It  follows,  that  the  husband's  assignment  does 
not  defeat  the  rights  of  the  plaintiffs 

It  is  therefore  ordered  and  decreed,  that  the  Circuit  decree  be  reversed, 
that  the  writ  of  partition  do  issue  to  make  partition  of  the  real  estate  of 
John  Guess,  sen.,  (deceased)  ;  that  John  Matheney  and  Patrick  Quar- 
termus do  account  to  the  plainlifls  for  so  much  of  the  share  of  their 
mother,  Rachel,  of  the  personal  estate  of  John  Guess,  sen.,  which  the 
said  Patrick  received  from  the  executors  under  the  assignment  of  the 
said  John,  which  may  exceed  the  said  John's  one-third  part  of  her  whole 
share  of  the  personal  estate  of  the  said  John  Guess,  sen.,  with  the  interest 
thereon  from  the  death  of  the  tenant  for  life  ;  in  the  event  of  the  said 
John  Matheney  and  Patrick  Quartermus,  being  unable  to  pay  the  same, 
the  executors,  John  Guess  and  David  Felder,  will  account  for  and  pay 
the  same.  It  is  also  ordered  and  decreed,  that  John  Guess  and  David 
Felder,  do  account  for  and  pay  to  the  plaintiffs,  the  entire  balance  of 
their  mother  Rachel's  share  of  her  father,  John  Guess's  estate,  remaining 
in  their  hands  after  the  said  payment  to  Patrick  Quartermus,  with  the 
interest  upon  the  said  balance. 

Johnson,  J.,  concurred. 


*T1]  *Ex  parte,  John  Yincent  Martin  and  Caroline  E.  Martin. 

Guardian  intendinci;  to  remove  from  the  State  with  her  wards,  the  Court  required 
her  before  entering  on  the  appointment  to  give  bond  for  the  return  of  one  of  them 
at  a  suitable  age  to  receive  his  education  in  this  State,  and  of  both,  when  required 
by  the  Court.  [*71] 

Columbia,  April,  1834. 

This  was  a  petition  on  the  part  of  minor  children,  praying  the  appoint- 
ment of  Mrs.  Sally  Maria  Martin,  their  step-mother,  as  their  guardian. 

De  Sausstjee,  Chancellor.    Mr.  Blanding  appeared  for  the  petitioners, 
and  Mr.  Gregg  for  their  paternal  relations,  when  the  petition  was  read, 


*71]  COLUMBIA,  JUNE,    1834.  Gl 

and  the  minors  being  present,  were  examined  by  me,  and  declared  their 
anxious  desire  that  their  step-mother,  Sally  ;>raria  Martin,  sliould  be 
appointed  the  guardian  of  their  persons ;  that  they  were  extremely 
unwilling  to  be  separated  from  her,  and  that  they  had  deliberately  chosen 
her  for  their  guardian,  after  due  consultation  with  their  relations.  Under 
these  circumstances,  I  am  constrained  to  make  the  appointment,  and  I 
do  it  the  more  readily  from  the  fact  that  I  am  personally  well  acquainted 
with  Mrs.  Martin,  and  know,  that  for  judgment  and  attachment  to  these 
children,  she  is  entitled  to  the  entire  confidence  of  the  Court,  as  she  pos- 
sessed that  of  her  husband.  But  on  the  part  of  the  relations  of  the 
minors,  it  is  objected  that  it  is  the  intention  of  Mrs.  Martin  to  remove  to 
the  State  of  Maryland  with  the  said  John  Vincent  Martin  ;  that  they  are 
unwilling  that  be  should  be  removed  from  the  State  and  receive  his 
education  abroad. 

After  hearing  the  objection  thus  raised,  and  duly  considering  the  same, 
I  am  of  opinion  that  it  ought  not  to  prevail.  The  minor  is  now  only 
fourteen  years  of  age,  and  his  education,  preparatory  to  his  collegiate 
course,  can  safely  be  confided  to  his  step-mother.  But  as  it  is  the  wish 
of  his  relations  who  reside  in  this  State,  where  his  property  is  situated, 
that  he  should  receive  his  collegiate  education  here,  I  thiuk  their  views 
in  this  respect  ought  to  prevail. 

It  is  therefore  ordered  that  the  said  Sally  Maria  Martin  be  appointed 
guardian  of  the  persons  of  the  petitioners,  John  Vincent  Martin  and 
Caroline  E.  Martin ;  and  that  the  said  John  Vincent  Martin  be  returned 
to  this  State,  in  case  he  should  be  removed  from  it,  as  soon  as  he  arrives 
at  the  age  of  seventeen,  or  sooner,  if  he  should  be  sooner  prepared  to 
enter  college  ;  and  that  he,  or  his  *relations,  be  then  at  liberty  to  p^w^^ 
move  this  Court  for  further  directions  respecting  his  education.  ■- 

And  it  is  further  ordered,  that  it  be  referred  to  the  Commissioner  of 
the  Court  of  Equity  for  Richland  district,  to  report  what  will  be  a  proper 
annual  allowance  to  be  placed  in  the  hands  of  the  said  guardian,  for  the 
support  and  education  of  each  of  the  said  wards  ;  and  that  before  making 
up  such  report,  Edmund  Martin,  the  administrator  of  the  estate  of  their 
father,  be  notified  of  this  order,  and  of  the  time  and  place  of  making  the 
said  inquiry. 

On  appeal,  the  following  is  the  judgment  of  the  Court  : 

O'Neall,  J.  This  Court  is  satisfied  with  the  reasons  assigned  by  the 
Chancellor,  for  his  appointment  of  Mrs.  Martin  as  the  guardian  of  the 
petitioners. 

It  is  therefore  ordered  and  decreed,  that  his  order  making  the  appoint- 
ment, be  affirmed  generally  :  and  that  the  following  addition  thereto  be 
made  and  observed,  to  wit.  :  that  before  entering  on  the  duties  of  the 
said  appointment,  Mrs.  Martin  do,  before  and  to  the  Commissioner  of 
the  said  Court,  enter  into  sufficient  and  satisfactory  security  for  the  dis- 
charge of  her  duty  as  guardian  ;  and  also  to  return  to  this  State,  the 
ward,  John  Vincent,  according  to  Chancellor  De  Saussure's  order ; 
and  both  of  her  wards,  whenever  the  Court  of  Equity  for  Richland  dis- 
trict may  require  it  to  be  done. 

Harper  and  Johnson,  Js.,  concurred. 


62  SOUTH    CAROLINA   EQUITY    REPORTS.  [*72 


James  Chesnut  and  John  Chesnut  v.  The  Fire  and  Marine 
Insurance  Company,  Sarah  Yaughan,  Benjamin  Bineham,  Wm. 
Blanding  and  Geo.  L.  Champion. 

Funds  being  in  possession  of  the  Court  (or  subject  to  its  order),  the  Court  ordered 
notice  to  be  published  for  creditors  to  come  in  and  establish  their  claims  in  op- 
position to  one  of  the  defendants,  who  claimed  it  as  a  principal  creditor: — Held, 
that  all  the  creditors  who  came  in  under  the  order  were  rightly  in  Court,  properly 
parties  to  the  case,  and  bound  by  the  proceedings :  and  an  order  of  the  Chancellor 
requiring  them  to  file  a  cross  bill,  on  order  to  establish  their  demands,  reversed. 
[*84] 

Order  of  the  Chancellor  quashing  the  reports  of  a  former  Commissioner  on  claims 
of  creditors,  because  it  did  not  appear  that  before  making  them  up  he  had  givea 
the  parties  notice,  or  an  opportunity  afterwai-ds  to  contest  them  reversed.  In 
the  absence  of  proof,  it  will  be  presumed  that  the  Commissioner  had  done  his 
duty  and  given  due  notice ;  but  under  the  circumstances,  the  reports  referred 
back  to  the  present  Commissioner,  with  instructions  to  regard  them  &&  prima  facie 
evidence  in  favor  of  the  claims  reported,  but  with  leave  to  falsify  them  by  proof. 
[*85] 

Camden. — 

Wilie  Vaughan,  by  deed  dated  12th  April,  1819,  in  consideration  of 
natural  love  and  affection  for  his  wife  and  children,  and  also  in  considera- 
tion of  five  dollars,  conveyed  to  Benjamin  Bineham,  Wra.  Blanding,  and 
^Hq-i  Greorge  L.  Champion,  a,ll  his  estate,  in  trust,  for  his  *\vife,  Sarah 
-•  Vaughan,  for  her  separate  use  for  life,  and  after  her  death,  in  trust 
for  such  of  the  heirs  of  her  body,  by  the  said  Wilie  begotten,  and  in  such 
manner  and  portions,  as  she  by  deed  or  will,  may  limit  and  appoint,  and 
in  default  of  appointment  in  trust  for  Claiborne  Yaughan,  Eliza  Yirginia 
Yaughan,  and  such  other  heirs  of  the  body  of  the  said  Sarah,  by  the 
said  Wilie,  hereafter  to  be  begotten,  as  may  survive  the  said  Sarah,  share 
and  share  alike,  &c.  The  property  to  be  in  no  manner  liable  to  the 
future  debts  of  Wilie  Yaughan.  The  trustees,  or  a  majority,  are  author- 
ized to  collect  the  debts  due,  and  apply  them  to  paying  just  debts,  and 
the  deed  thus  proceeds:  "But  as  the  debts  due  to  me  will  be  insufficient 
to  pay  the  debts  I  owe,  for  the  complete  and  final  discharge  of  my  debts, 
the  said  William,  Benjamin,  and  George,  or  a  majority  of  them,  are 
hereby  authorized  and  empowered  to  sell  and  dispose  of,  in  such  manner 
and  on  such  terms  as  they,  the  said  William,  Benjamin,  and  George,  or  a 
majority  of  them,  shall  think  fit,  any  portion  of  the  said  property,  real  or 
personal,  and  to  make  good  titles  therefor.  And  after  the  debts  are 
paid,  they,  or  a  majority,  are  authorized  to  sell  the  lands  and  make  titles, 
and  invest  the  proceeds  in  such  way  as  they,  or  a  majority,  shall  think 
fit,  subject  to  the  limitations,  directions  and  purposes  above  set  forth." 

Bineham  and  Blanding  declined  the  trust.  George  L.  Champion 
alone  acted,  and  sold  to  John  and  James  Chesnut,  the  plaintiffs,  several 
of  the  negroes,  for  which  he  took  their  bond  for  $3,000 — and  sold  to 
James  Chesnut  three  of  the  negroes,  for  which  he  received  cash.  He 
sold  the  bond  to  the  defendants,  the  Fire  and  Marine  Insurance  Company, 
at  fifteen  per  cent,  discount  and  one  per  cent,  brokerage. 

On  the  15th  of  January,  1823,  the  plaintiffs  filed  this  bill  against 
Champion,  the  Insurance  Company,  the  two  other  trustees,  and  Sarah 
Yaughan,   setting  forth   their  purchase  of  the  slaves   from  Champion 


*73]  COLUMBIA,   JUNE,    1834.  G3 

alone,  the  other  trustees  havinj^  declined  to  act.  That  there  were 
specific  liens  upon  the  slaves,  and  they  required  the  proceeds  of  the  sales 
to  be  applied  to  discharge  them.  They  state  that  Champion  had  assigned 
their  bond  to  the  Insurance  Company,  who  demanded  payment :  that 
plaintiffs  ought  not  to  pay  until  Champion  caused  the  title  to  the  slaves 
to  be  perfected  by  procuring  the  assent  and  joint  sale  by  a  majority  of 
the  trustees,  and  by  applying  the  amount  of  sales  to  discharge  the  spe- 
cific liens.  They  pray  to  be  relieved  from  their  contracts,  or  their  title 
to  be  ^confirmed  and  quieted  against  the  claims] of  the  cestui  que  r^.^  . 
trusts  and  the  execution  creditors. 

Blanding  and  Bineham  answer  that  they  declined  the  trust. 

Champion's  answer  admits  the  sale  of  the  negroes,  and  that  Mrs. 
"Vaughan,  as  executrix  of  Wilie  Vaughan,  joined  in  the  sale :  that  he 
transferred  the  bond  to  the  Insurance  Company,  who  gave  him  the  money 
for  it,  but  at  fifteen  per  cent,  discount,  and  that  he  expended  the  money 
as  trustee  of  Yaughan,  in  discharge  of  debts  due  by  the  estate  and  the 
general  exigencies  of  the  estate  ;  that  he  alone  acted  under  the  trust. 
That  as  the  proceeds  of  the  negroes  have  been  appropriated  to  the  benefit 
of  the  trust  estate,  the  bond  or  sale  ought  not  to  be  set  aside  or  cancelled. 
That  a  trustee  ought  to  be  appointed  by  the  Court  to  act  with  him,  with 
orders  to  confirm  the  titles,  as  the  estate  has  had  the  benefit  of  the  sales. 

The  Charleston  Fire  and  Marine  Insurance  Company  answer,  that  the 
bond  was  assigned  to  them  on  the  23d  May,  1821,  by  endorsement  thereon 
of  George  L.  Champion,  acting  trustee  of  the  estate  of  Wilie  Yaughan, 
and  Sarah  Yaughan,  his  executrix  and  residuary  legatee.  That  the 
Company  knew  nothing  of  any  discounts  against  the  bond,  nor  of  the 
nature  of  the  debt.  That  Champion  had  a  right  to  sell  the  slaves,  either 
to  pay  debts  or  for  the  other  purposes  of  the  trust.  That  plaintiffs  have 
a  good  title  to  the  slaves  and  have  nothing  to  do  with  the  fund  that  may 
come  into  Champion's  hands.  That,  as  trustee,  he  was  authorized  to 
receive  the  money  on  the  bonds,  even  if  bound  to  apply  it  to  any  existing 
demands.  That  the  advance  of  the  money  by  them  on  the  bond  must  be 
viewed  in  the  same  light  as  if  the  plaintiifs  had  paid  it,  and  that  they 
are  therefore  entitled  to  hold  the  bonds  and  receive  the  amount  in  dis- 
charge of  their  advances  to  Champion  and  Sarah  Yaughan.  That  they 
are  purchasers  without  notice,  and  if  Champion  is  bound  to  apply  the 
proceeds  to  any  particular  purpose,  he  has  received  the  amount,  and  the 
Court  may  order  him  to  apply  it  as  it  pleases.  They  trust  that  he  will 
be  ordered  to  make  a  good  title  to  the  slaves,  and  that  the  plaintiffs  be 
ordered  to  pay  them  the  bond. 

The  Commissioner  reported  on  the  10th  February,  1824,  as  follows  : — 
That  on  the  12th  April,  1819,  Wilie  Yaughan  made  a  deed  of  trust  to 
the  trustees  with  power  to  sell  his  estate  to  pay  his  debts,  and  for  the 
benefit  of  Sarah  Yaughan,  his  wife,  and  his  children.  That  the  sales 
made  by  G.  L.  Champion  and  Sarah  *Yaughan  were  without  -^y^ 
sufficient  authority,  because  Bineham,  Blanding  and  Chami)ion  ^ 
were  appointed  trustees,  and  a  majority  were  authorized  to  sell ;  and 
Mrs.  Yaughan  could  only  sell  her  interest,  which  was  a  remote  one.  He 
recommends  a  confirmation  of  the  sale,  because  the  price  is  greater  than 
could  be  got  now. — That  the  funds,  or  the  greater  part  arising  from  the 
sales,  were  applied  to  pay  pressing  demands  against  Wilie  Yaughan,  and 
in  support  of  his  family,  and  that  subsequent  sheriff's  sales  have  been 


64  SOUTH   CAROLINA   EQUITY    REPORTS.  [*75 

made  ^o  an  amount  sufficient  to  discharge   the  liens  iu  plaintiff's  bill 
mentioned. 

Order,  February  Term,  1824. — On  motion,  Ordered  that  the  report  be 
confirmed,  and  that  plaintiffs  pay  the  amount  of  the  bond  yet  remaining 
due,  into  the  hands  of  the  Commissioner,  subject  to  the  future  order  of 
this  Court.  Referred  to  Commissioner  to  report  at  the  next  Court  upon 
the  claims  of  persons  entitled  to  this  fund,  and  that  G.  L.  Champion 
account  before  the  commissioner  for  his  application  of  the  funds  which 
came  into  his  hands  from  the  sale  of  the  bond  to  the  Insurance  Company, 
and  that  the  Commissioner  give  notice  to  the  creditors  to  come  in  and 
make  their  claims. 

A  decree  was  pronounced  at  the  same  term  by  Chancellor,  De 
Saussure,  upon  the  claims  of  Drs.  Blanding,  De  Leon  and  Anderson, 
^yho  had  proved  their  demands,  and  claimed  payment  out  of  funds  raised 
by  sale  of  part  of  the  estate  of  Wilie  Vaughan,  under  the  trust  deed. 
The  only  question  was  as  to  interest,  which  the  decree  allowed  contrary 
to  the  report. 

Order,  June  Term,  1825. — Upon  motion,  it  is  Ordered  that  the  funds 
now  in  the  hands  of  the  Commissioner,  and  such  as  may  come  into  his 
hands  before  a  final  report,  be  paid  over  to  the  Fire  and  Marine 
Insurance  Company,  subject  to  the  rights  of  the  contesting  claimants, 
and  subject  to  the  further  order  of  this  Court. 

At  June  Term,  1827,  the  Commissioner,  Mr.  Evans,  reported,  viz  : — 
"That  on  the  12th  April,  1819,  Wilie  Yaughan  assigned  his  whole 
estate  to  Biueham,  Blanding  and  Champion,  in  trust  for  his  family,  and 
to  pay  his  debts,  giving  a  majority  of  them  power  to  sell  for  that  pur- 
pose. Champion  alone  accepted,  managed  the  estate,  made  considerable 
sales  of  personal  property,  and  applied  part  of  the  proceeds  to  pay  the 
debts  due  by  W.  Yaughan  before  the  assignment,  and  part  for  debts 
contracted  by  himself  as  trustee.  He  sold  several  negroes  to  John 
Chesnut,  for  which  he  took  the  joint  bond  of  John  and  James  Chesnut 
5^w„-|  for  *3000  ;  several  negroes  *to  William  Trapp,  and  took  the  joint 
'^-l  bonds  of  Wm.  Trapp  and  A.  F.  Peay  for  $2326.  On  the  2d  June, 
1821,  these  bonds  were  sold  to  the  Fire  and  Marine  Insurance  Company 
of  Charleston,  at  large  discounts  ;  Chesnut's  at  fifteen  per  cent,  and 
Trapp's  and  Peay's  at  ten  per  cent.,  and  one  per  cent,  on  the  whole  for 
brokerage.  Chesnut's  bond  have  been  enjoined  by  this  Court,  and 
have  been  paid.  Trapp's  and  Peay's  bonds  were  not  specially  enjoined. 
In  consequence  of  these  transactions  between  the  trustee  and  the  Insur- 
ance Company,  I  have  reported  them  creditors  of  the  said  estate,  after 
the  assignment,  to  the  amount  of  money  actually  paid  by  them  for  the 
said  bonds  ;  this  Court  having  already  decreed  that  George  L.  Champion 
acted  in  the  sale  of  the  negroes  without  sufficient  authority.  The 
amount  of  demands  against  the  estate  which  have  been  rendered  to  the 
Commissioner,  and  were  contracted  previous  to  the  deed  of  trust,  is 

$6,038  50 
Amount  of  demands,  including  the  sums  due  to  the  Insurance 
Company  on  account  of  their  purchase  of  Chesnut's  bond, 
and  Peay's  and  Trapp's  bonds,  and  interest  to  the  23d 
June,  182T  and  debts  contracted  by  the  trustee,  or  other- 
wise, ....  .  .  8,112  T8 

$14,151  28 


*76   ]  COLUMBIA,  JUNE,    1834.  65 

That  Wilie  Yaughan  \Yas  appointed  guardian  of  his  children  in  1813, 
and  entered  into  the  usual  bond,  and  acted  till  1820,  when  his  letters  of 
guardianship  were  revoked.  He  never  made  a  return.  He  planted  in 
common  with  his  children,  the  place  called  Rocky  Branch,  and  was 
entitled  under  the  authority  of  this  Court  to  one  half  the  proceeds  of  the 
crops.  His  children,  on  this  account,  must  have  large  demands  against 
his  estate,  as  good  crops  were  generally  made,  and  produce  high  ;  but 
in  consequence  of  his  having  made  no  returns,  I  am  unable  to  fix  on  any 
amount.  Wilie  Yaughan  also  sold  in  1819  or  '20,  a  negro  woman. 
Beck,  and  child,  tlie  propei'ty  of  his  children,  to  James  Gardner,  for 
$800.  The  sale  was  made  without  the  authority  of  this  Court,  and  has 
never  received  its  sanction  or  confirmation.  I  recommend  that  his 
estate  be  chargeable  with  this  amount,  together  with  the  interest  from 
the  time  of  sale." 

The  report  states  that  the  "  available  funds  belonging  to  the  estate  of 
Wilie  Yaughan,  including  the  bonds  of  John  and  James  Chesnut,  and 
Trapp  and  Peay,  amount  to  $12,047  34  ;  and  recommends  *that  r^hw 
the  debts  reported  to  be  due  before  the  assignment,  and  stated  in  L 
the  schedule  attached  to  this  report,  and  the  amount  which  may  be  found 
to  be  due  to  the  children  of  Wilie  Yaughan,  be  first  paid  ;  and  the 
creditors  of  the  trustee,  after  the  assignment,  be  next  paid,  in  equal 
degree." 

The  report  further  recommends,  that  the  "  bond  of  John  and  James 
Chesnut,  which  has  been  paid  by  the  order  of  the  Court,  be  delivered 
up  to  them  ;  and  that  the  whole  real  estate  of  Wilie  Yaughan,  in  the 
assignment,  and  not  sold  by  the  trustee,  be  sold  by  the  Commissioner  on 
a  credit." 

The  following  report  of  the  same  Commissioner,  without  date,  also 
appears  in  the  proceedings  : 

"That  on  the  12th  April,  1819,  Wilie  Yaughan  assigned  to  Bine- 
ham,  Blanding  and  Champion,  in  trust,  his  whole  estate,  for  the  benefit 
of  his  family  and  to  pay  his  debts  ;  authorizing  them  or  a  majority,  to 
sell  any  part  of  his  estate  for  the  purposes  aforesaid  — Gr.  L.  Champion 
alone  accepted  the  trust,  and  managed  from  April,  1819,  to  January, 
1824,  and  sold,  to  James  and  John  Chesnut,  negroes  to  the  value  of 
$3000  ;  and  to  William  Trapp  and  A.  F.  Peay,  negroes  to  the  value  of 
$2,093  40.  This  Court,  in  a  former  decree,  decided  that  Champion 
acted  without  sufficient  authority  in  the  management  of  the  estate,  but 
confirmed  the  sale  to  John  and  James  Chesnut,  because  it  was  favorable 
for  the  estate.  The  sale  to  Trapp  and  Peay  has  not  as  yet  been 
confirmed. 

"I  report  that  judgments  to  the  amount  of  $4,319  42,  have,  since  the 
assignment,  been  recovered  against  Wilie  Yaughan  and  his  trustee, 
Champion ;  and   property   has   been   sold   by    the  sheriff  of  Kershaw 

District,  to  the  amount  of  $ ,  and  applied  to  the  said  judgments, 

and  the  estate  is  ijow  wholly  insolvent. 

"I  report  that  Wilie  Yaughan,  in  1813,  became  guardian  of  his 
children,  and  acted  as  such  until  his  death,  in  1821,  without  making  any 
return  of  his  acting  as  such  to  this  Court,  and  that  his  children,  in  con- 
sequence of  his  guardianship,  are  creditors  of  his  estate,  to  the  amount 
of  $4,418. 


66  SOUTH   CAROLmA   EQUITY   REPORTS.  [*77 

"I  report  that  at  the  time  of  the  assignment,  on  the  12th  April,  1819, 
all  his  creditors  ought  to  have  been  placed  on  the  same  footing,  and  paid 
in  proportion  to  their  several  demands. 

"  I  recommend  that  a  trustee  be  appointed  to  carry  into  effect  the 
intention  of  the   assignment,  and  that  the  persons  who  have   obtained 
^^o-i  judgments  and  received  the  whole  of  their  demands  be  made   *par- 
*    -J  ties  to  this  bill,  and  be  compelled  to  refund  what  they  have  re- 
ceived over  and  above  their  dividends. 

"  I  report  that  James  and  John  Chestnut  have  paid  the  amount  of 
their  bonds  which  were  sold  by  G.  L.  Champion  to  the  Fire  and  Marine 
Insurance  Company,  and  the  simple  interest  on  the  same,  into  this  Court 
in  pursuance  of  an  order  of  this  Court,  June  Term,  1824.  I  therefore 
recommend  that  the  said  Company  be  compelled  to  deliver  up  said  bonds 
on  the  payment  to  them  of  the  principal  qnd  interest,  deducting,  how- 
ever, the  interest  on  the  same  during  the  time  it  was  impounded  by  this 
Court." 

The  cause  was  continued  from  term  to  term,  until  it  came  before 
Chancellor  Johnston,  special  term,  November  1883.  Mr.  W.  F.  De 
Saussure  then  moved  to  confirm  the  two  last  reports  of  the  ex-cora- 
raissioner,  Evans,  one  dated  June,  1827,  and  the  other  without  date 
And  as  incident  thereto,  that  the  Court  should  take  up  and  consider  the 
question,  who  is  entitled  to  the  money  secured  by  the  bond  of  the  plain- 
tiffs described  in  the  pleadings. 

Mr.  W.  Mayrant  opposed  the  motion,  on  the  ground  that  the  reports 
were  made  without  authority  and  without  summoning  the  parties  ;  and 
that  unless  the  reports  are  properly  made  up,  the  rights  of  the  claimants 
cannot  be  properly  decided. 

The  Chancellor  granted  an  order  quashing  both  the  last  reports — 
"  because  no  evidence  was  reported  with  them  to  enable  the  Court  to 
judge  of  their  correctness  or  incorrectness,  and  because  it  did  not  appear 
that  before  the  Commissioner  made  them  up,  he  had  called  the  parties 
interested  before  him,  or  given  them  any  opportunity  to  attend  to  their 
rights  ;  nor  had  they  notice  of  the  reports  so  as  to  enable  them  to  except. 
Besides,  it  appeared  that  for  the  last  seven  or  eight  years,  the  Court  had 
declined  to  act  on  the  reports,  which  (thus  travelling  from  the  Commis- 
sioner's office  to  the  Court  and  back  again,  each  party  insisting  that  the 
other  should  be  the  actor,  which  was  retorted,)  formed  a  serious  impedi- 
ment to  the  case." 

Mr.  Mayrant,  then  on  the  part  of  the  Insurance  Company,  moved  that 
the  bill  be  dismissed  as  to  them  for  want  of  prosecution,  as  well  as 
because,  after  the  confirmation  of  their  purchases,  there  were  no  longer 
any  equities  in  the  bill  entitling  it  to  be  retained  as  against  them.  At 
the  same  time  Mr.  Blanding  moved  that  the  claims  of  Yaughan's  credi- 
tors, heretofore  rendered  and  not  established,  be  referred  to  the  present 
^wQ-1  Commissioner  to  report  thereon,  *distinguishing  such  as  were 
-I  contracted  before  and  after  the  execution  of  the  deed  of  trust. 
That  the  accounts  of  Champion  be  referred,  and  that  he  account;  and 
that  the  Commissioner  report  the  amount  of  funds  received  and  how 
applied. 

Both  motions  were  refused,  but  the  Court  passed  an  order  to  the 
folio  win";  effect :  — 


*79]  COLUMBIA,   JUNE,    1834.  67 

That  the  bill  be  retained  but  further  proceedings  in  the  cause  be 
suspended.  That  persons  claiming  the  fund  in  opposition  to  the  Insu- 
rance Company,  have  leave  to  file  a  cross  bill  laying  claim  to  the  same, 
setting  out  the  ground  of  their  claims,  and  making  the  parties  necessary 

to  a  full  decision  :   that  unless  such  bill  be  filed  by  the  day  of 

this  bill  stand  dismissed  as  to  the  Insurance  Company,  without 

prejudice. 

Chancellor  Johnstox.  The  bill  was  oot  dismissed  at  present,  because 
the  Court,  by  confirming  the  sale  to  the  Chesnuts,  and  ordering  the  fund 
to  be  paid  in,  and  allowing  creditors  to  render  their  cjaims,  had,  in  some 
sort,  pledged  itself  to  see  their  claims  duly  dealt  by  ;  and  if  the  bill  were 
now  dismissed,  injustice  might  be  done  by  the  lapse  of  time  or  act  of 
limitations,  to  which  their  dependance  on  the  pledge  of  the  Court  may 
have  subjected  them  :  to  say  nothing  of  the  expences  to  which  they  may 
have  been  subjected  on  the  same  confidence. 

Proceedings  were  stayed,  because  the  experience  of  eight  or  ten  years 
was  proof,  that,  without  a  cross  bill,  the  responsibility  of  becoming  actor 
could  not  be  thrown  on  any  one,  and  in  the  present  course,  there  was  no 
likelihood  of  ever  seeing  the  end  of  the  cause.  Whose  duty  was  it  to 
press  George  L.  Champion  to  an  account  ?  Were  Yaughau's  creditors 
bound  to  do  it  ?  Were  they  entitled  to  this  fund  until  they  established 
a  deficiency  of  other  assets,  and  that  there  was  no  other  resource  ?  If 
not — if  they  were  bound  to  show  such  exertion  and  deficiency,  what 
means  had  they  to  enforce  such  accounting  ?  Where  were  their  charges  ? 
How  had  he  been  allowed  the  benefit  of  this  answer  ?  Again,  did  it  not 
appear  from  the  reports  and  other  proceedings,  that  there  were  trust 
assets  which  had  never  come  to  his  hands,  and  never  been  disposed  of? 
In  whose  hands  are  they?  Who  claims  them?  How  are  the  claimants 
of  them,  whether  they  be  executors,  legatees,  cei-tui  que  trusts,  or  others, 
represented  here  ?  How  can  a  decree  disposing  of  them  be  made,  unless 
these  be  represented  ?  *And  again,  do  not  the  proceedings  disclose  r-j^Qn 
that  Champion  made  other  sales  on  no  better  authority  than  this  ?  ^ 
Are  the  creditors,  if  entitled  at  all,  entitled  to  be  paid  solely  out  of  this 
fund ;  or  ought  the  other  purchasers  to  contribute  ?  Must  not  the  credi- 
tors then  bring  them  in  also  ?  It  appears  that  Mrs.  Vaughan  w^as  an 
obligee,  and  joined  in  the  assignment,  thus  enabling  G.  L.  Champion  to 
receive  funds.  If,  by  reason  of  his  misapplication  of  them,  the  Insurance 
Company  are  to  be  deprived  of  the  bond,  are  they  to  be  without  a  decree 
against  him, — or  rather,  ought  she  not  to  be  first  liable  ?  But  she  is  not 
one  of  the  parties  Who  can  make  her,  or  any  one  else  who  has  not 
voluntarily  come  in,  a  party,  as  the  proceedings  now  stand  ?  Is  it  desir- 
able in  a  Court  of  justice,  to  stick  to  a  course  of  practice,  whereby  the 
justice  of  the  case  cannot  be  reached  ? 

A  cross  bill  was  allow^ed  because  the  Court  being  committed,  and  the 
present  course  not  allowing  of  a  satisfactory  decision,  no  other  means 
suggested  itself.  What  other  is  there  ?  Upon  the  bill  filed  in  this  case, 
could  any  creditor  obtain  a  decree  against  the  plaintiffs,  upon  a  substan- 
tive demand,  distinct  from  the  matters  stated  in  the  bill,  without  a  cross 
bill  ?  Under  anything  like  sound  practice,  I  apprehend  not.  And  can 
a  defendant  obtain  a  decree  against  a  co-defendant  upon  easier  terms 


68  SOUTH    CAROLINA   EQUITY    REPORTS.  [*80 

than  against  the  plaintiff?  Is  a  co-defendant  any  more  to  be  deprived 
of  an  answer  to  the  matter  laid  to  his  charge  than  the  plaintiff  ?  Is  he 
to  be  surprised  ?  If  not,  how  is  he  to  be  guarded  against  it  when  every 
thing  lies  in  mere  breath  ?  What  is  he  to  meet  ?  What  witnesses  is  he 
to  summon  ?  What  is  he  to  disprove  ?  It  is  worse  than  this.  Is  it 
not  ?  If  the  creditors  here  obtain  a  decree  upon  the  present  proceedings, 
is  it  not  asserting,  not  only  that  co-defendants  can  have  a  decree  against 
each  other,  when  they  could  not  against  the  plaintiffs,  but  that  one  who 
is  not  a  defendant  at  all,  can  haye  it  against  one  of  the  defendants  !  And 
all  this  upon  mere  parol ! 

There  is  no  way  equal  to  the  most  regular  way.  None  speedier — none 
more  conducive  to  justice ;  none,  on  the  whole,  less  expensive  ;  none  in 
which  the  record  can  be  made  more  effectually  to  carry  the  justification 
of  the  final  judgment — none  furnishing  st^ch  means  of  correcting  it,  if 
erroneous  ;  and,  certainly,  none  showing  so  clearly  what  has  been  decided, 
between  whom,  and  who  are  bound  or  barred  by  the  judgment.  When 
*sn  P^^^iss  are  *asking  leave  to  take  some  short  cut  in  practice — like 
-I  persons  about  to  open  a  friendly  suit,  how  fair  they  are  !  What  a 
mighty  anxiety  to  go  upon  the  merits  !  We  only  want  to  ascertain  our 
real  rights :  everything  is  agreed  on  :  we  understand  each  other  :  no  need 
of  blacking  paper,  or  making  up  a  regular  record  :  why  then  load  us  with 
expense  by  compelling  us  to  go  by  rule  ?  But  just  yield  to  them — give 
up  one  sound  principle  of  law — break  down  one  wholesome  rule  of  prac- 
tice— and  see  the  consequences.  Each  is  instantly  tempted  to  take 
advantage  of  the  other — the  one  cheats — the  other  is  surprised — one 
insists  that  the  onus  of  some  duty  is  upon  his  opponent — he  denies  and 
retorts — everything  gets  into  confusion — the  rules  to  restrain  and  govern 
them  have  been  given  up,  and  at  length  they  come  in  at  the  final  judg- 
ment, irritated  and  discontented.  Nor  is  this  all — no  one  can  tell  what 
that  judgment  should  be,  nor  whether  it  will  meet  the  merits  of  the  cause. 
It  is  above  correction  if  never  so  wrong— and,  worst  of  all,  it  is  ten  to 
one,  if  half  the  parties  or  their  privies  are  bound  by  it.  And  at  last,  the 
parties  angered  by  the  contest  and  instructed  by  experience,  set  about  a 
regular  suit,  to  go  over  the  same  ground  again.  This  is  liberal  practice 
— this  is  cheap  litigation.  It  corrupts  most,  satisfies  none,  and  impov- 
erishes all. 

The  Insurance  Company  was,  by  the  order,  allowed  to  be  the  defendant, 
or  one  of  the  defendants,  because  some  one  must  bo,  and  they  might  as 
well  be  as  any  others. 

It  appeared  also,  that  their  right  to  the  fund  was  prima  facie  good, 
and  it  was  but  right  that  those  who  would  impeach  it  should  be  put  to 
do  so — that  whenever  the  Court  confirmed  the  sale,  that  of  itself  imparted 
a  consideration  to  the  bond  which  prima  facie  enured  to  the  obligees, 
and  that  the  Company  holding  the  bond,  even  without  an  assignment, 
held  such  a  right  to  payment  as  not  only  Equity  but  Law  recognizes. 
They  could  have  sued  and  collected  in  the  name  of  the  obligees.  That, 
although  the  Court  at  the  time  of  confirming  the  sale,  ordered  the  fund 
into  Court,  directing  a  litigation  for  it,  that  did  not  amount  to  any 
declaration  that  as  a  condition  of  the  confirmation  to  the  creditors  or 
cestui  que  trusts  should  have  it.  If  that  had  been  intended  as  a  condi- 
tion of  the  confirmation,  the  fund  would  at  once  have  been  decreed  to 


*81]  COLUMBIA,   JUNE,    1834.  G9 

the  creditors  or  cef^tui  que  trvsfs.  The  terms  of  the  order  showed  no 
such  condition.  Upon  the  terms  of  the  order  the  Insurance  Company 
might  as  well  insist  that  the  confirmation  was  *upon  condition  r- . 
that  ihey  should  receive  the  money,  as  the  creditors  could.  The  L  °-' 
only  condition  of  the  confirmation  was,  that  the  money  be  paid  in  to  be 
litigated  for.     The  cross  bill  carries  out  that  condition  into  practice. 

In  one  thing  I  am  afraid  I  was  wrong.  I  forgot  to  declare  by  the 
order,  that  for  default  of  filing  a  cross  bill  by  a  given  day,  the  Insurance 
Company  should  be  at  liberty  to  move  for  the  dismissal  of  the  bill ; 
instead  of  declaring  that  in  such  case  it  should  stand  ipi^o  facto  dismissed. 

John  C.  Vaughan,  Claiborne  C.  Yaughan  and  Eliza  Virginia 
Yaughan,  children  of  Wilie  Yaughan,  and  creditors  of  his  estate,  called 
in  under  the  order  of  the  Court  to  establish  their  claims  in  this  cause, 
appealed  from  the  decretal  order  of  Chancellor  Johnston,  ordering  the 
bill  to  be  dismissed  nisi,  on  the  following  grounds  : — 

1.  Because  all  the  proper  parties  are  before  the  Court  necessary  to  a 
final  adjudication  of  the  cause,  and  they  are  in  this  Court  by  virtue  of  its 
orders  made  in  June,  1824,  and  June,  1825. 

2.  Because,  if  it  be  necessary  that  another  bill  be  filed  to  ascertain  to 
whom  the  proceeds  of  the  bonds  should  be  paid,  such  bill  should  be  filed 
by  the  Insurance  Company. 

3.  Because  the  orders  made  by  this  Court,  at  June  Term,  1824,  and 
June  Term,  1825,  have  never  been  appealed  from,  and  without  such 
appeal,  cannot  now  be  reversed  by  an  order  of  a  subsequent  Chancellor, 
overruling  those  orders  and  giving  a  new  direction  to  the  cause. 

4.  Because  it  is  the  duty  of  the  Insurance  Company  to  bring  George 
L,  Champion  to  account ;  and  it  is  their  duty  to  show  that  he  is  in 
advance  to  the  estate  of  Wilie  Yaughan,  in  order  to  subrogate  them- 
selves to  his  rights,  and  thus  establish  their  claim  to  the  proceeds  of  the 
bond  of  the  Chesnuts  ;  and  it  is  not  the  duty  of  these  appellants. 

5.  They  further  appeal  from  the  Chancellor's  decree  refusing  to  confirm 
the  reports  made  by  the  Commissioner  at  June  Term,  182T,  and  the 
undated  report,  (of  June  Term,  1828,)  establishing  the  amount  due  by 
the  estate  of  Wilie  Yaughan,  to  his  children  ;  and  they  move  to  confirm 
said  reports. 

6.  And  if  said  reports  are  not  confirmed  by  this  Court,  they  further  appeal 
from  the  order  refusing  to  grant  the  motion  made  by  *Mr.  Bland-  r^co 
ing  for  a  reference,  and  move  this  Court  to  grant  the  said  order.       ^ 

The  cause  was  argued  by  Mr.  Wm.  F.  De  Saussure  on  these  grounds, 
before  the  Court  of  Appeals,  in  December,  1833,  and  the  following  judg- 
ment pronounced  in  that  Term. 

O'Neall,  J.  It  appears  that  the  price  of  the  negroes  bought  by  the 
plaintiffs,  and  belonging  to  the  trust  estate,  was,  on  the  decree  confirming 
their  title,  paid  into  Court,  "subject  to  the  future  order  of  the  Court.'' 
In  the  meantime,  it  was  referred  to  the  Commissioner  to  rej)ort  upon  the 
different  claims  to  this  fund  ;  and  a  part  of  the  order  of  reference  directed 
"that  G.  L.  Champion  account  before  the  Commissioner  for  his  ai)plica- 
tion  of  the  funds  wliich  came  into  his  hands  from  the  sale  of  the  bond  to 
the  Insurance  Company,  and  that  the  Commissioner  gave  notice  to  the 
YoL.  I.— 28 


70  SOUTH    CAROLINA   EQUITY    REPORTS.  [*83 

C7'editors  to  come  hi  and  wake  tJiei?'  claiins."  Under  this  part  of  the 
order,  several  creditors  came  in,  established  their  demands,  and  obtained 
a  decree  directing  payment.  At  June  Term,  1825,  the  fund  in  Court, 
and  such  as  might  come  to  the  Commissioner's  hands  before  the  final 
report,  were  directed  to  be  paid  "  to  the  Fire  and  Marine  Lisurance 
Company,  subject  to  th.f  rights  of  the  contesting  claimants,  and  subject 
to  the  further  order  of  this  Court.^^  Since  this  order,  the  Court  has 
done  nothing  further  than  continue  the  cause  from  term  to  term,  under 
reference,  until  November,  1833,  special  Term,  when  the  cause  came  on 
before  Chancellor  Johnston  for  trial.  Two  reports  of  the  late  Commis- 
sioner, establishing  a  large  sum  due  by  the  trust  estate  to  John  C, 
Claiborne  C,  and  Eliza  Virginia  Yaughan,  were  presented  for  confirma- 
tion, which  were  resisted  by  the  Fire  and  Marine  Insurance  Company; 
and  the  Chancellor  quashed  the  reports,  and  ordered  this  bill  to  be 
dismissed  as  to  the  Fire  and  Marine  Insurance  Company,  unless  the 
persons  claiming  the  fund  in  opposition  to  the  Company  should  file  a 
cross  bill  within  a  limited  thne. 

From  this  decree,  John  C,  Claiborne  C,  and  Eliza  Virginia  Vaughan, 
appeal  on  various  grounds,  which  make  the  following  questions  : — 1st. 
Were  the  appellants  rightly  in  Court,  under  the  orders  made  in  the  cause 
as  creditors  claiming  the  funds  ?  2d.  If  so,  had  the  Chancellor  a  right 
to  quash  the  Commissioner's  reports,  and  to  cast  upon  the  appellants  the 
burden  of  filing  a  bill  against  the  Fire  and  Marine  Insurance  Company 
to  try  the  right  to  the  said  fund  ? 

*84T       ^^'  ^^®  ^^^^  ^^  controversy  came  properly  into  the  hands  of  the 
-'  Court ;  for,  on  confirming  the  plaintiffs'  titles  to  the  slaves  which 
they  had  bought,  it  was  the  business  of  the  Court  to  see  that  their  price 
was  applied  to  the  purposes  of  the  trust  which  had  authorized  their  sale. 
This  could  not  be  done  by  leaving  the  fund  to  be  paid  by  the  Fire  and 
Marine  Insurance  Company  :  they  were  not  creditors  of  the  grantor  of 
the  trusts,  but  of  his  trustee,  Champion.     They  bought  the  plaintiffs' 
bond  from  him,  but  the  title  to  the  negroes  which  he  sold,  and  for  which 
the  bond  was  given,  was  defective,  he  having  no  power  to  make  the  sale. 
They  could  not  have  recovered  the  bond  from  the  plaintiffs  on  account 
of  this  defect  of  title.     When  the  Court  of  Equity  confirmed  the  title, 
they  assumed  the  trust,  and  the  price  was  properly  payable  to  them,  as 
the  fund  applicable  to  the  payment  of  the  debts  of  Wilie  Vaughan,  in 
place  of  the  slaves  sold.     The  Fire  and   Marine   Insurance   Company 
having  obtained  nothing  by  their  purchase  of  the  bond,  had  a  plain  right 
to  recover  the  amount  paid  by  them  to  Champion  for  the  bond  from 
him  ;  and  if  they  could  show  that  he  was  in  advance  to  his  trust  estate 
and  was  insolvent,  then  to  take  his  place  as  a  creditor  of  the  trust,  to  the 
amount  of  the  sum  paid  by  them  to  him,  if  he  was  so  far  in  advance  to 
the  estate ;  if  not,  to  the  extent  he  was.     This  is  the  state  of  the  claim 
of  the  Fire  and  Marine  Insurance  Company  :  that  it  was  properly  before 
the  Court  is  not  denied.     To  decide  whether  it  would  entitle  them  exclu- 
sively to  the  money,  three  facts  had  still  to  be  made  out :    1.   That  there 
■were  no  unsatisfied  creditors  of  Wilie  Vaughan.     2.   That  the  trustee. 
Champion,  was  in  advance  for  the  trust  estate  to  a  sum  equal  to  the 
fund  in  dispute;    and    3.   That  he  was  insolvent. — Until  the  first  was 
established,  the  Fire  and  Marine  Insurance   Company  could  have  no 


*84]  COLUMBIA,   JUNE,    1834.  71 

exclusive  right  to  the  whole  fund.  The  most  they  could  contend  for,  on 
establisl)ing  the  other  two  facts,  would  be  to  come  in  rateably  witii  the 
other  creditors  of  the  trust,  if  there  were  any.  To  ascertain  whetlier 
there  were  any  creditors,  all  the  creditors  of  Wilie  Yauglian  were 
requested  by  notice  to  come  in  and  establish  their  demands.  All  who 
come  in  under  that  notice  are  parties  to  the  cause,  and  are  bound  l)y  all 
the  proceedings.  The  appellants,  it  appears,  came  in  under  the  order, 
and  have  (j^ei-hajys  on  an  ex  parte  reference)  satisfied  the  Commissioner 
of  the  debt  due  to  them  by  Wilie  Yaughan.  Tliis  made  them  properly 
parties  in  Court,  and  as  much  entitled  to  its  favor  as  the  *Fire  and  r^or 
Marine  Insurance  Company.  For,  notwithstanding  they  are  in  •- 
possession  of  the  fund,  they  are  in  possession  subject  to  the  further  order 
of  this  Court,  and  the  appellants  were  moving  to  have  it  paid  over  to 
them.  In  such  a  case  the  Court  must  decide  on  the  hostile  rights  of  the 
two  claimants ;  and  to  enable  it  to  do  so,  it  might  be  referred  to  the 
Commissioner  to  ascertain  and  state  the  facts  upon  which  the  Court  is 
called  upon  to  decide.  In  this  way,  every  thing  would  appear  by  the 
record.  There  is  nothing  irregular  in  such  a  course  of  proceeding.  It 
is  every  day's  practice  on  a  creditor's  bill,  to  bring  all  the  creditors  before 
the  Court  by  a  notice  requiring  them  to  come  in  and  prove  their  demands. 
In  such  a  case  there  may  be  hostile  and  conflicting  claims  among  the 
creditors ;  upon  them  the  Court  must  decide  on  the  coming  in  of  the 
Commissioner's  report.  A  fresh  bill  would  hardly  be  required  to  be  filed 
in  such  a  case,  to  make  the  creditors,  coming  in  under  the  notice,  parties 
before  the  Court. 

2.  If  the  Commissioner's  reports  were  made  up  entirely  on  an  ex  parte 
hearing  of  the  plaintiffs,  they  might  have  been  set  aside  ;  but  I  have 
looked  through  the  Chancellor's  report  in  vain  to  see  any  evidence  of  the 
fact  that  they  were  so.  In  the  absence  of  proof,  the  legal  presumption 
would  be,  that  the  Commissioner  had  done  his  duty  and  given  due  notice 
before  hearing  the  plaintiffs.  That  presumption  is,  I  think,  strengthened 
by  the  entries  on  the  dockets  at  June  Terra,  182*7  and  1828.  In  all 
events,  I  think  the  Chancellor  erred  in  quashing  the  reports  and  ordering 
the  appellants  to  file  the  cross  hill,  (as  he  has  called  it).  We  have  seen 
they  were  properly  parties  ;  and  notwithstanding  there  had  been  great 
delay  and  negligence  in  bringing  the  cause  to  trial,  it  is  no  more  to  be 
imputed  to  them  than  it  is  to  the  other  parties.  If  the  case  presented 
to  him  did  not  justify  him  in  pronouncing  a  final  decree  in  favor  of  the 
appellants,  he  ought  at  least  to  have  sent  them  back  to  the  Commissioner, 
with  instructions.  Situated  as  the  case  is,  I  do  not  think  that  we  ought 
to  confirm  the  Commissioner's  reports  of  1827  and  1828,  and  direct  the 
fund  to  be  paid  to  the  appellants. 

It  is  ordered  and  decreed  that  the  order  quashing  the  reports,  and  the 
decree  of  the  Chancellor,  be  reversed :  that  the  cause  be  remanded  to 
the  Circuit  Court,  and  that  the  Commissioner  be  directed  to  examine 
and  rei)ort  upon  the  claims  of  the  creditors  of  Wilie  Yaughan,  which 
have  been  rendered  to  the  former  Commissioner  and  not  decreed  ui)on  ; 
distinguishing  which  debts  were  contracted*  before  and  which  after  |-^g„ 
the  execution  of  the  deed  of  trust :  in  such  investigation,  the  Com-  L 
missioner's  report  of  1827,  and  the  undated  report,  (supposed  1828,) 
will  be 25nma/acie  evidence  of  the  claims  of  the  appellants;  and  the 


72  SOUTH    CAROLINA   EQUITY   REPORTS.  [*86 

Fire  and  Marine  Insurance  Company  will  have  the  right  to  examine  and 
point  out  from  the  reports,  or  the  evidence  on  which  they  were  founded, 
any  part  or  parts  of  the  said  claims  which  have  been  allowed  improperly; 
and  upon  them  the  present  Commissioner  will  decide  and  report :  so 
too,  they  may  by  proof  disprove  the  whole  or  any  part  of  the  said  claims, 
and  upon  the  proof  which  they  may  adduce,  the  Commissioner  will 
decide  and  report. 

It  is  also  ordered  and  decreed,  that  the  order  of  February  Term,  1824, 
requiring  Champion  to  account  for  the  funds  which  came  into  his  hands 
for  the  sale  of  the  bonds  he  extended,  and  that  the  Commissioner  do 
forthwith  take  the  account  ordered  by  it. 

Johnson,  J.,  and  Harper,  J.,  concurred. 

Mr.  Mayrant,  the  counsel  for  the  Insura.ice  Company,  being  absent  at 
the  last  Term  of  the  Court  of  Appeals  when  the  foregoing  opinion  was 
delivered,  by  leave  of  the  Court,  at  this  sitting  submitted  the  following 
grounds  in  support  of  the  Circuit  decree  : 

1.  That  the  Commissioner's  reports  are  unaccompanied  by  evidence; 
and  were  made  up  on  ex  parte  hearings,  as  appears  by  the  Chancellor's 
decree,  and  his  decretal  order  quashing  the  reports  ;  which  last  recites 
the  fact,  that  it  did  not  appear  that  the  parties  had  been  summoned  to 
attend  the  references,  and  which  order  was  not  before  the  Court  at  its 
last  sitting. 

2.  That  Mrs.  Sarah  Yaughan,  the  executrix  and  residuary  legatee  of 
Wilie  Vaughan,  was  never  made  a  party  to  these  proceedings ;  and  that 
persons  claiming  in  opposition  to  her  and  to  the  Company  should  pro- 
ceed by  a  cross  bill  and  make  her  a  party. 

3.  That  the  orders  heretofore  made  suppose  the  Company  to  be 
prima  facie  entitled  to  the  fund,  and  no  legal  or  equitable  demands 
having  been  established  against  it,  the  decree  of  the  Chancellor  la 
relation  thereto  was  right. 

'XQ^^■^  *0n  which  the  Court  delivered  at  this  Term,  the  following  judg- 
■"^^J  ment: 

O'Neall,  J.  At  the  instance  of  the  defendant's  counsel,  (who  was 
absent  at  the  last  Term,  when  this  cause  was  decided,  and  who  it  seems 
did  not  receive  until  after  the  adjournment  of  this  Court,  the  notice 
of  appeal,  which  had  in  due  time  been  forwarded  to  him  by  mail,)  we 
have  looked  into  the  former  opinion  and  are  perfectly  satisfied  with  its 
correctness. 

We  did  suppose  from  the  papers  before  us  at  the  last  Term,  that  Mrs. 
Sarah  Vaughan  was  regularly  a  party  in  Court.  For  her  name  is  set 
down  in  the  report  of  the  cause  as  one  of  the  defendants  ;  and  she 
appeared  to  the  case  by  her  counsel,  Stephen  D.  Miller.  But  it  seems 
that  process  of  subpoena  to  answer  was  not  prayed  against  her ;  and  she 
is  not  therefore  regularly  a  party  in  Court.  This  cannot,  however, 
affect  the  result  of  this  care.  As  executrix  or  residuary  legatee,  she  has 
no  interest  in  it.  The  contest  is  between  creditors  ;  and  the  question  is 
— who  are  entitled  to  a  fund  arising  under  a  trust  deed  to  which  she  was 
not  a  party  ? 

The  motion  is  dismissed, 

Johnson,  J.,  and  Harper,  J.,  concurred. 


♦  Q-T 


87]  COLUMBIA,   JUNE,    1834.  73 


Thomas  Sumter,  adra'r.  of  Thomas  Sumter,  Sen.,  v.  Josiah  B, 
Morse,  Cyrus  Morse,  and  A.  T.  Morse. 

If  there  be  mutual  runnino;  accounts  between  the  parties  and  any  of  the  items  have 
accrued  within  the  time  of  the  statute  of  limitations,  this  amounts  to  an  acknow- 
led;;ment  of  the  previous  account  and  a  promise  to  pay.  [*9-] 

The  plaintiff,  (an  administrator,)  claimed  demands  in  his  bill  against  the  defendants 
extending  down  to  a  period  within  the  statute:  and  set  forth  that  he  as  the  agent 
of  his  intestate  had  frequently  calleiJ  on  the  defendants  and  requested  them  to 
come  to  a  settlement  of  their  accounts,  and  pay  what  upon  balancing  the  accounts 
should  appear  to  be  due: — JJfld,  that  this  statement  of  the  bill  is  such  an  admis- 
sion of  the  previous  accounts  of  the  defendants  as  will  prevent  tlie  operation  of 
the  statute  of  limitations;  and  being  made  by  his  agent  is  obligatorj^  on  the 
estate  of  the  intestate.  [*93] 

Before  answer  filed,  it  was  agreed  between  the  parties  that  neither  should  plead 
the  statute  of  limitations  to  the  demands  of  the  other,  and  the  defendants  did  not 
in  their  answer,  or  on  the  reference,  urge  that  plea;  the  plaintiff  will  not  after- 
wards be  permitted  to  plead  the  statute.  [*93] 

Generally  an  executor  or  administrator  may  or  maj'  not  plead  the  statute  of  limita- 
tions: the  only  exception  is  when  the  demand  is  in  whole  or  in  part  due  to 
himself,  in  which  case  the  legatees  or  distributees  have  been  permitted  to  plead 
it  when  be  had  not:  but  when  the  administrator  is  the  sole  distributee,  his 
agreement  not  to  plead  the  statute  has  every  possible  legal  and  equitable  sanction. 
[*94] 

Sumter. — February,  1834. 

The  bill  stated  that  the  defendants,  J.  B.  &  C.  Morse,  were  indebted 
to  the  plaintiif' s  intestate,  General  Sumter,  for  house  rent,  negro  hire, 
moneys  paid  by  him  as  their  security,  for  goods  delivered  from  his  store, 
and  supplies  from  his  plantation  ;  which  debts  were  contracted  at  different 
times,  from  1817  until  1830.  These  demands  are  detailed  at  length  in 
the  bill.  That  the  plaintiff,  as  the  agent  of  General  Sumter,  in  his  life- 
time, frequently  applied  to  the  said  J.  B.  and  C.  Morse,  and  desired  them 
to  come  to  a  settlement  of  their  accounts  with  General  Sumter,  and  to 
pay  what,  upon  the  balance  of  their  accounts,  should  appear  to  be  due  ; 
*which  they  neglected  and  refused  to  do.  That  through  the  assist-  |--,.^o 
ance  thus  afforded  by  General  Sumter,  they  purchased  considerable  •- 
real  and  personal  property,  which,  with  the  view  of  defrauding  their 
creditors,  they  caused  to  be  conveyed  to  the  defendant,  A.  T.  Morse,  who 
holds  the  same  for  their  use  and  benefit,  they  being  insolvent.  The  bill 
prays  that  this  property,  and  certain  other  property  in  the  possession  of 
Cyrus  Morse,  may  be  decreed  liable  for  their  debts  ;  and  as  defendants 
are  about  to  remove,  for  a  ne  exeat  and  general  relief. 

The  defendants  in  their  answers  deny  fraud  in  the  conveyance  of  the 
property  to  A.  T.  Morse,  or  any  intention  on  their  part  to  evade  the 
payment  of  just  debts.  J.  B.  and  C.  Morse  insist  that  they  have  claims 
against  General  Sumter,  and  that  on  a  fair  and  full  settlement,  it  will  be 
found  that  they  are  not  only  not  indebted  to  him,  but  that  he  is  indebted 
to  them. 

The  cause  was  referred  to  the  Commissioner  to  make  up  the  accounts, 
who  reported,  that  on  stating  tlie  accounts,  tlicre  appeared  a  l)alance  of 
fifty-eight  dollars  and  twenty-three  cents,  in  favor  of  J.  B.  and  C.  Morse. 

The  report  states  that  the  plaintiff  claimed  to  have  admitted  by  the 


74  SOUTH    CAROLINA    EQUITY   REPORTS.  [*88 

defendants,  J.  B.  and  C.  Morse,  certain  items  of  charges  for  money  and 
other  things  made  in  the  hand-writing  of  General  Sumter  against  them, 
which  they  objected  to  as  not  being  evidence  of  the  demands  therein 
stated,  which  objection  the  Commissioner  sustained.  It  further  states, 
that  since  the  day  of  reference  the  plaintiff  insisted  upon  the  statute  of 
limitations  against  the  demands  of  J.  B.  and  C.  Morse,  but  that  the 
defendants  objected  thereto,  upon  the  ground  that  there  had  been  an 
understanding  between  the  plaintiff  and  the  defendants  that  the  statute 
should  not  be  pleaded  ;  which  objection  the  Commissioner  sustained,  and 
refused  to  allow  to  the  plaintiff  the  benefit  of  the  statute. 

The  plaintiff  excepted  to  the  report  of  the  Commissioner  on  the 
ground  : — 

That  the  Commissioner  refused  to  allow  the  plea  of  the  statute  of 
limitations  on  the  part  of  the  plaintiff,  upon  an  alleged  agreement  that 
plaintiff  would  not  plead  the  statute;  the  evidence  of  which  agreement 
he  has  not  been  allowed  time  to  contradict,  except  by  his  own  affidavit, 
which,  after  understanding  that  testimony  of  such  agreement  had  been 
given  by  defendants'  counsel,  he  tendered  to  the  Commissioner,  who 
rejected  it. 

QQ*1  ^Chancellor  DeSaussure.  It  appears  by  the  statement  of  the 
-J  defendants'  counsel,  that  he  called  upon  the  plaintiff  before  the  an- 
swers were  filed,  and  inquired  if  he  intended  to  use  the  statute  against 
the  demands  of  the  defendants;  and  stated  that  if  he  did  not  mean  to 
rely  upon  the  statute,  the  defendants  would  also  waive  it. — That  the 
plaintiff  assented  to  this  course,  and  the  statute,  in  consequence,  was  not 
insisted  upon  by  the  answers. 

Unquestionably  if  the  defendants  have  been  induced  to  waive  the  statute 
in  consequence  of  this  understanding,  the  Court  will  not  permit  them  to 
be  prejudiced  by  it,  and  inasmuch  as  the  plaintiff  now  urges  that  plea 
against  tlie  defendants'  demands,  it  will  be  considered  as  pleaded  by  them 
against  the  demands  of  the  plaintiff.  Indeed  it  appears  by  the  affidavit 
of  Mr.  Potts,  the  plaintiff's  counsel,  that  after  the  first  reference,  but 
before  the  final  reference  of  the  accounts  between  J.  B.  and  C.  Morse 
and  the  plaintiff,  and  before  any  report  made  thereon,  he  expressly  insisted 
in  writing  upon  the  plea  of  the  statute,  on  behalf  of  the  plaintiff,  and  at 
the  same  time  gave  notice  that  the  defendants  were  at  liberty  to  urge  it 
on  their  side  if  they  thought  proper  to  do  so.  The  counsel  for  the  plain- 
tiff, alleged  in  argument,  that  the  plaintiff  consented  to  this  arrangement 
upon  the  supposition  that,  as  the  books  of  account  kept  by  the  defendants 
were  to  be  evidence,  so,  on  the  other  hand,  the  accounts  kept  by  his 
intestate.  Gen.  Sumter,  in  his  own  handwriting,  would  be  received  as 
evidence  against  the  defendants  ;  and  that  he  only  insisted  upon  the 
statutory  protection,  when  these  memoranda  of  his  intestate  were  objected 
to  by  the  defendants,  and  rejected  by  the  Commissioner.  Independent  then 
of  the  objection  that  an  administrator  cannot  by  his  promise  revive  a  debt 
barred  by  the  statute  of  limitations  in  the  lifetime  of  the  intestate,  I  think 
the  plaintiff  ought  not  to  have  been  deprived  of  the  protection  of  the 
statute.  But  it  is  objected  on  the  part  of  the  defendants,  that  the 
statute  cannot  be  pleaded  in  this  case :  first,  because  both  parties  were 
merchants  ;  and  secondly,  because  there  were  mutual  unsettled  demands 
between  the  parties,  an  account  current  with  items  on  both  sides  running 


*89]  COLUMBIA,   JUNE,    1834.  75 

through  the  whole  period  of  the  respective  demands  ;  and  this  is  the 
important  question  in  the  case. 

It  is  true,  that  both  the  intestate  and  the  defendants,  J.  C.  and  C. 
Morse,  owned  stores,  and  each  had  a  store  account  against  the  other. 
But  it  appears  that  the  store  account  of  General  Sumter  against  the 
defendants,  commenced  on  the  Kith  October,  1817,  and  terminated  r^oa 
in  March,  1818  ;  while  the  store  accounts  of  the  defendants  against  '- 
him  commenced  on  the  4th  June,  1817,  and  terminated  on  the  27th 
December,  1821.  The  exception  in  the  Statute  of  Limitations  is  in  the 
following  words  :  "  Other  than  such  accounts  as  concern  the  trade  of 
merchandize  between  merchant  and  merchant,"  &c.  The  plaintiff's 
intestate  died  on  the  1st  June,  1832,  and  this  bill  was  filed  on  the  9th  of 
January  1833  ;  and  the  answer  of  the  defendants,  setting  up  these  claims, 
on  the  21st  of  January,  1838.  Thus,  more  than  ten  years  had  elapsed 
between  the  date  of  the  last  item  in  the  accounts  and  the  institution  of 
this  suit.  The  question,  whether  the  statute  will  operate  as  a  bar  where 
the  account  is  between  merchants  and  concerning  merchandize  but  more 
than  four  years  have  elapsed  since  the  last  item,  has  been  much  discussed, 
and  the  decisions  are  contradictory,  but  the  better  opinion  seems  to  be, 
that  the  statute  may  be  pleaded.  In  Coster  v.  Murray,  5  Johnson's  Ch. 
Rep.  522,  Chancellor  Kent  reviews  the  cases  and  comes  to  that  con- 
clusion. And  in  the  case  of  Yan  Rhyne  v.  Yincent,  1  M'Cord's  Ch.  31G, 
Judge  Nott,  after  referring  to  the  authorities,  says,  "  I  do  not  at  present 
see  any  good  reason  why  merchants  and  factors,  after  all  dealings  between 
them  had  ceased,  should  not  be  as  well  entitled  to  the  protection  of  the 
statute  as  other  persons"  He  observes,  however,  that  lie  does  not  mean 
to  give  an  opinion  upon  the  point  because  the  case  did  not  require  it.  I 
have  come  to  the  conclusion,  that  the  object  of  the  statute  was  to  prevent 
dividing  of  the  account  where  it  was  between  merchants  ;  and  if  there  are 
any  items  within  the  period  of  limitation,  these  will  save  the  whole  account. 
Here  there  are  no  such  items,  and  the  statute  is  a  bar  :  Nor  will  it  help 
the  defendants,  that  there  were  subsequent  dealings  between  them  and  tlie 
plaintiff's  intestate  ;  there  were  clearly  no  such  dealings  between  them  as 
merchants,  and  the  subsequent  transactions  are,  moreover,  none  of  them 
within  four  years  before  this  suit,  as  will  be  shown  hereafter. 

But  it  was  argued,  that  although  the  parties  be  not  merchants,  nor  the 
account  concern  merchandize,  yet  the  statute  does  not  apply  where  there 
have  been  mutual  unsettled  current  accounts  between  the  parties  ;  and 
such  is  the  law,  provided  there  be  some  item  within  the  period  of  limita- 
tion. Fitch  V.  Hillary,  1  Hill's  Rep.  292.  Is  there  any  such  item  in 
this  case  ?  The  latest  dealing  between  the  parties  was  in  1824,  when  the 
intestate  indorsed  *a  note  to  be  discounted  in  the  Bank  of  the  p,i..gj 
State,  for  the  accommodation  of  J.  B.  and  C.  Morse,  More  than  four  L 
years  elapsed  between  that  transaction  and  the  filing  of  the  bill,  and  the 
objection  thus  urged  by  the  defendants  against  the  operation  of  the  statute 
cannot  prevail.  But  it  is  urged  by  the  defendants,  that  tlie  filing  of  the 
bill  seeking  an  account  and  admitting  that  there  are  unsettled  demands 
between  the  parties,  shuts  out  the  plaintiffs  from  the  benefit  of  the  statute. 
Upon  examining  the  bill,  I  do  not  feel  the  force  of  this  argument;  liut 
give  the  defendants  the  benefit  of  it  as  a  general  jn-inciple,  iiow  can  it 
operate  in  this  cause  ?     The  plaintiff  is  an  administrator — the  defendants' 


76  SOUTH   CAROLINA   EQUITY    REPORTS.  [*91 

demands  were  barred  in  the  lifetime  of  the  intestate.  Can  he  revive  these 
demands  i;igainst  the  estate  by  any  acknowledgment  on  his  part  ?  I 
consider  it  as  settled  law  that  he  cannot. — Executors  of  Fisher  v.  Exec- 
utors of  Tucker,  1  M'Cord's  Ch.  175. 

It  is  argued  for  the  defendants  that  plaintiff's  demand  for  the  bank 
debt,  reported  by  the  Commissioner  as  now  amounting  to  two  thousand 
one  hundred  and  forty-one  dollars  and  sixty-three  cents,  is  barred  by  the 
Statute  of  Limitations — that  the  plaintiff  has  alleged  in  his  bill  that  he 
paid  the  debt  to  the  bank,  and  that  the  statute  therefore  began  to  run 
from  the  period  of  such  payment.  The  statement  in  the  bill  is,  that  in 
1824  the  intestate  indorsed  a  note  in  bank  for  the  accommodation  of  J.  B. 
and  C.  Morse,  whom  the  bank  sued,  and  the  intestate  being  also  threat- 
ened with  suit,  paid  the  bank  and  took  an  assignment  of  the  suit,  which 
he  prosecttted  to  judgment  in  the  name  of  the  President  and  Directors. 
The  plaintiff  now  relies  on  that  judgment,  but  the  defendants  allege  that 
the  debt  was  paid  when  the  judgment  was  obtained.  The  defendants 
then  mean  to  ask  this  Court  to  set  aside  that  judgment — upon  what 
equity  ?  That  the  debt  had  been  already  paid.  By  whom  had  it  been 
paid  ?  By  the  party  now  setting  up  the  judgment.  The  suit  was 
assigned  to  the  intestate,  who  paid,  for  the  privilege  of  carrying  it  on,  the 
amount  of  the  note  ;  and  this  was  the  proper  mode  of  protecting  himself. 
This  is,  therefore,  a  judgment  debt,  and  is  not  subject  to  the  operation 
of  the  Statute  of  Limitations. 

The  decretal  order  directs  the  case  to  be  referred  back  to  the  Commis- 
sioner, with  leave  to  both  parties  to  plead  the  Statute  of  Limitations  ; 
from  this  decree  the  defendants  appealed,  and  move  for  a  reversal  thereof, 
on  the  ground  that  the  chancellor  erred  in  his  decision  on  the  Statute  of 
Limitations. 

*Qoi     ^Blandinq,  for  the  appellant  cited  6  T.  R.  192;  Fitch  v.  Hillary, 
^"-1  1  Hill,  292;  1  M'C.  Ch.  175. 

De  Saussu7'e,  contra,  cited  5  John.  Ch.  Rep.  522  ;  Ang.  on  Lim. 
207,  chap.  10,  197;  1  M'C.  Ch.  310;  5  Cranch.  15. 

O'Neall,  J.  I  agree  with  the  defendants,  that  the  Statute  of  Limi- 
tations cannot  avail  the  plaintiffs  upon  two  grounds,  to  wit :  first,  the 
statement  in  the  Ijill  of  a  running  account  on  the  part  of  General  Sumter 
against  the  defendants  J.  B.  and  C.  Morse,  from  1817  to  1830,  and  the 
allegation  in  the  bill  having  reference  to  this  account,  and  the  counter 
account  of  the  said  defendants,  "  that  the  plaintiff,  as  the  agent  of  Gen- 
eral Sumter,  in  his  lifetime,  frequently  applied  to  the  said  J.  B.  and  C. 
Morse,  and  desired  them  to  come  to  a  settlement  of  their  accounts  with 
the  said  General  Sumter,  and  to  pay  what  upon  the  balance  of  their 
accounts  should  appear  to  be  due  :"  Secondly,  the  agreement  between 
the  plaintiff  and  the  counsel  of  the  said  J.  B.  and  C.  Morse,  that  neither 
of  the  said  parties  should  plead  the  Statute  of  Limitations,  and  the  actual 
execution  of  this  agreement  by  the  plaintiff,  is  not  pleading  the  Statute 
of  Limitations  until  the  account  had  been  taken  of  all  the  charges  on  the 
part  of  the  defendants  against  General  Sumter. 

First.  It  is  well  settled  that  if  there  be  mutual  running  accounts 
between  parties,  and  any  of  the  items  have  accrued  within  the  time  of 


*92]  COLUMBIA,   JUNE,   1834.  77 

the  statute,  this  amounts  to  an  acknowledgment  of  the  previous  account 
and  a  promise  to  pay.  Fitch  v.  Hillary,  1  Hill,  292.  I  am  disposed, 
however  to  think,  that  the  reason  the  statute  does  not  run,  in  such  a  case 
is  because  the  plaintifi's  cause  of  action  does  not  accrue  to  him  until  the 
mutual  dealing  has  ceased.  It  is  only  at  and  after  the  last  item,  that  a 
balance  can  be  struck  ;  until  then  it  is  uncertain  who  may  have  the  right 
to  sue.  I  am  not  speaking  now  in  reference  to  the  exception,  in  the 
Statute  of  Limitations,  of  accounts  which  "concern  the  trade  of  merchan- 
dize between  merchant  and  merchant,  their  factors  and  servants,"  and  as 
to  which  it  will  be  unnecessary  to  give  any  opinion  in  this  case,  but  of 
mutual  running  accounts  existing  between  the  plaintiff  and  defendants,  of 
any  character  or  kind. 

From  the  statement  of  the  accounts  in  this  case,  made  by  the  Commis- 
sioner, it  appears  that  from  1817  to  the  close  of  1821,  there  were  mutual 
running  accounts  between  General  Sumter  and  *J.  B.  and  C.  r^oq 
Morse.  The  statute  would  (if  this  was  all  to  prevent)  run  from  L 
the  1st  of  January,  1822,  and  thus  entirely  exclude  this  account.  But 
it  appears  from  the  bill  that  the  plaintiff's  claims  extended  down  to  1830  ; 
and  that,  in  reference  to  them,  as  the  agent  of  General  Sumter,  he 
frequently  called  on  the  defendants  J.  B.  and  C.  Morse,  and  requested 
them  to  come  to  a  settlement  of  their  accounts  with  the  said  General 
Sumter  and  pay  what  upon  the  balance  of  their  accounts  should  appear 
to  1)e  due.  This  statement  on  the  part  of  the  plaintiff  is  an  admission 
by  General  Sumter  of  the  accounts  of  the  defendants  as  a  previous  and 
subsisting  debt,  which  he  is  willing  and  liable  to  pay.  For  it  is  in  sub- 
stance saying  "here  are  my  accounts  extending  to  1830,  produce  yours, 
deduct  the  amount  and  pay  the  balance."  After  such  an  acknowledg- 
ment made,  as  we  must  presume  in  1830,  for  the  plaintiff's  account 
against  one  of  the  defendants  then  ceases,  it  would  be  strange  indeed  if 
the  plaintiff  could  set  up  the  Statute  of  Limitations,  which  his  intestate 
had  thus  waived.  I  speak  of  the  acknowledgment,  as  made  by  General 
Sumter  himself;  for  although  it  was  made  by  the  plaintiff,  yet  it  was 
made  by  him  as  the  agent  of  General  Sumter,  and  by  his  authority,  and 
is  his  acknowledgment,  upon  the  plain  legal  maxim,  "qui  facit  per 
alium,  facit  per  se." 

Second.  That  the  plaintiff  could  not,  in  this  case,  plead  the  Statute  of 
Limitations,  after  his  agreement  not  to  plead  it,  and  his  actual  execution 
of  it,  by  not  attempting  to  plead  it,  until  the  defendant's  accounts 
had  been  proved,  is,  I  think,  perfectly  demonstrable.  It  is  true,  that  the 
defendant's  agreement  not  to  plead  "the  statute,  would  not,  as  an  execu- 
tory contract,  bind  him  ;  but  in  pursuance  and  in  execution  of  it,  he  did 
not  plead  it ;  and  the  question  now  is  not,  was  he  bound  by  his  contract 
not  10  plead  the  statute ;  but,  can  he  have  leave  to  plead  it  after  he  has 
in  pursuance  of  his  agreement  declined  at  the  proper  time  to  plead  it. 

An  executor  or  administrator  generally  may  or  may  not  plead  the 
Statute  of  Limitations.  This  privilege  is  conceded  to  him  as  well  on  ac- 
count of  his  legal  identity  with  his  testator  or  intestate,  as  also  on 
account  of  his  supposed  knowledge  of  the  legal  liability  of  his  testator  or 
intestate  to  pay  the  del)t  claimed.  The  only  exception  to  this  rule, 
which  has  been  recognized  in  this  Slate,  is  when  the  debt  or  demand  is 


78  SOUTH    CAROLINA   EQUITY   REPORTS.  [*93 

*QiT  ^"®  ^"  whole  or  in  part  to  the  executor  or  administratorn.  In  such  a 
-•  case  the  legatees  or  distributees  *have  been  permitted  to  plead  the 
Statute  of  Limitations,  notwithstanding  the  executor  and  administrator 
declined  to  plead  it.  In  the  case  before  us,  the  plaintiif  is  not  only  the 
administrator,  but  also  the  only  distributee,  and  under  such  circumstances, 
his  act  must  have  the  sanction  of  every  possible  legal  or  equitable  interest 
to  sustain  it. 

He  did,  in  pursuance  and  in  execution  of  his  agreement,  decline  to 
plead  the  Statute  of  Limitations.  For,  to  the  accounts  set  up  by  him, 
the  defendants  did  not  by  their  answer,  or  on  the  reference,  plead  the 
Statute  of  Limitations;  this  was  a  performance  on  their  part,  of  that 
part  of  Colonel  Blanding's  agreement  which  they  were  to  perform. 
They  could  not  after  this  have  pleaded  it.  On  the  part  of  the  plaintiff, 
no  written  replication  to  the  defendant's  answer  is  required.  His 
objections  to  the  accounts  set  up  by  the  defendants  lay  altogether  in 
parol,  and  ought  to  have  been  urged,  either  before  the  order  of  reference 
was  made,  so  as  to  have  excluded  from  the  account  which  it  directed  all 
the  defendants'  accounts  ;  or,  at  least  at  the  time  when  the  accounts  were 
presented  to  the  Commissioner,  and  were  about  to  be  proved.  If  the 
plaintiff  had  intended  to  rely  on  the  Statute  of  Limitations,  he  should  at 
one  or  the  other  of  these  times  have  urged  it.  Not  having  done  so,  he 
must  be  taken  in  good  faith,  to  have  declined  to  plead  it,  and  be  placed 
in  the  same  situation  of  the  defendants,  who  after  their  agreement  and 
answer  could  not  have  pleaded  it.  Would  the  Court  under  these  cir- 
cumstances give  to  either  or  both  of  these  parties  on  the  application  of 
one  of  them  leave  to  plead  the  Statute  of  Limitations  ?  Where  a  party 
has  failed  to  plead  the  statute  at  the  proper  time,  the  Court  is  slow  to 
give  him  that  leave ;  but  after  a  case  is  on  trial,  and  the  proof  is  heard 
on  one  side,  it  is  then  too  late  to  ask  leave  to  file  the  plea.  That  was 
exactly  the  case  here :  the  Commissioner  had  heard  the  defendant's 
proofs  ;  they  had  legally  established  their  demand,  which  the  plaintiff's 
silence  as  to  the  Statute  of  Limitations  admitted  to  be  subsisting,  and 
that  he  was  willing  and  liable  to  pay.  After  this,  the  Commissioner  was 
right  in  refusing  to  allow  hira  the  benefit  of  the  Statute  of  Limitations  ; 
and  the  Chancellor  erred  in  allowing  to  both  parties,  on  the  application 
of  the  plaintiff  alone,  the  liberty  to  plead  it. 

Decree  modified. 

Johnson,  J.,  and  Harper,  J.,  concurred. 


*95]      *Henry  Parker  v.  Lewis  Holmes  &  John  Spann. 

When  actual  fraud  in  a  judgment  or  conveyance  is  clearly  proved,  it  is  wholly  void 
and  will  not  be  permitted  to  stand  as  a  security  for  what  is  actually  due;  but 
■when  Equity  infers  fraud  from  the  circumstances  and  relation  and  character  of  the 
parties,  it  is  at  the  discretion  of  the  Court,  to  allow  the  security  to  stand  good  for 
what  is  really  due.  [*95] 

Edgefield. — Before  Chancellor  De  Saussure,  June,  1833. 

The  plaintiff,  as  a  judgment  creditor  of  John  Spann,  filed  this  bill  to 


*95]  COLUMBIA,   JUNE,    1834.  79 

set  aside  a  judgment  the  defendant  Tf  olraes  had  against  Spann,  charging 
the  same  to  be  fraudulent,  and  praying  that  certain  moneys,  which  Holmes 
had  received  on  it  of  sales  by  the  sheriff,  may  be  decreed  to  him.  Spaun 
has  left  the  State.  The  answer  of  Holmes  denies  fraud  in  the  judgment, 
and  aifirms  that  the  consideration  was  for  services  rendered  by  liim  in 
attending  on  behalf  of  Spann  to  an  important  suit  in  Equity,  and  for 
moneys  advanced  to  him. 

Evidence  was  given  on  both  sides,  for  and  against  the  fairness  of  the 
transaction,  which  need  not  be  detailed.  The  Chancellor's  decree  declares 
that  the  transaction  between  Holmes  and  Spann  was  contrived  and 
intended  as  a  cover  of  Spann's  property  against  his  creditors,  which  is 
fraudulent ;  or  that  it  was  an  imposition  by  Holmes  on  the  weakness  and 
credulity  of  Spann,  an  habitual  drunkard  and  exposed  to  the  acts  and 
extortions  of  designing  men,  and  cannot  at  any  rate  be  allowed  to  affect 
creditors  :  That  Holmes  is  entitled  to  credit  for  the  actual  advances  of 
money  by  him,  and  the  true  value  of  the  services  rendered  ;  and  to  ascer- 
tain these  a  reference  was  ordered. 

Both  parties  appealed  ;  but  as  the  defendant's  grounds  depend  wholly 
on  the  facts,  they  need  not  be  stated. 

G7"iffin,  for  the  plaintiff,  now  moved  the  Court  to  reverse  so  much  of 
the  decree  as  allows  the  defendant  for  advances  made,  or  services  rendered, 
on  the  ground — that  the  transaction  being  fraudulent,  he  should  derive 
no  benefit  from  it ;  and  cited  Miller  v.  Tolleson,  Harp.  Eq.  Rep.  145  ; 
1  Jac.  &  Walk.  119. 

Wardlaw,  contra,  cited  2  Sch.  &  Lef.  501;  1  John.  Ch.  Rep.  478; 
8  Ves,  282. 

Harper,  J.  [After  noticing  the  facts  and  concurring  with  the  Chan- 
cellor in  his  conclusions  thereon.]  Nor  can  we,  in  relation  to  the  plain- 
tiff's ground  of  appeal,  say  that  the  Chancellor  has  erred  *in  decree-  r;iccy' 
ing  the  judgment  to  stand  as  a  security  for  what  shall  be  found  ^ 
actually  due  to  Holmes.  When  actual  fraud  (dolus  malus)  is  clearly 
proved,  the  judgment  or  conveyance  is  wholly  void,  and  will  not  be  per- 
mitted to  stand  as  a  security  for  what  is  actually  due.  Miller  v.  Tolleson, 
State  Rep.  Eq.  145.  But  where  equity  infers  fraud  from  the  circum- 
stances and  relation  and  character  of  the  parties,  it  is  at  the  discretion  of 
the  Court  to  allow  the  security  to  stand  good  for  what  is  actually  due. 
1  John.  Ch.  Rep.  478. 

Decree  affirmed,  (a) 

Johnson  and  O'Neall,  Js.,  concurred. 

(a)  See  Smith  v.  Loader,  Prec.  in  Ch.  80;  Abingdon  v.  Butler,  1  Ves.  jr.  206 
Townsend  v.  Lowfield.  1  Ves.  sen.  35;  Heme  v.  Meeres,  1  Vern.  465. 


CASES    IN   CHANCERY 

ARGUED     AND     DETERMINED    IN    THE 

COUPJ  OF  APPEALS  OP   SOUTH  CAROLIM 

Columbia — ^mmhtx,  1834,  mxh  |anuarg,  1835. 


JUDGES  PRESENT. 


Hon.  DAYID  JOHNSON,  Presiding  Judge. 
Hon.  J.  B.  O'NEALL.      I      Hon.  WILLIAM  HARPER. 


John  Peay,  Administrator  of  Samuel  M'Creary,  v.  Joseph  Fleming 
and  others,  Creditors  of  Samuel  M'Creary. 

If  an  administrator,  on  a  sale  of  his  intestate's  property,  tal^e  any  other  security 
than  that  required  by  the  terms  of  the  order  for  sale,  he  becomes  personally 
responsible,  and  if  loss  ensue  it  must  fall  on  him.  [*98] 

A  levy  is  prima  facie  evidence  of  satisfaction: — but  this  presumption  maybe  re- 
butted by  showing  that  satisfaction  in  fact,  has  not  and  could  not  have  resulted 
from  the  levy  by  reason  of  senior  executions  which  would  have  covered  a  larger 
amount  than  the  value  of  the  levy,  (a)  [*99] 

Chester. — Before  Chancellor  De  Saussure,  July,  1834. 

Bill  to  marshal  assets.  The  bill  was  filed  to  compel  the  creditors  of 
the  intestate  to  come  in  and  establish  their  demands,  and  receive  their 
respective  proportions  of  the  assets.  Under  an  order  of  the  Court,  the 
plaintiif  was  required  to  account  for  his  administration,  and  the  Commis- 
sioner, in  stating  the  account,  deducted  from  the  amount  of  the  sale  bill 
seventy  dollars,  the  price  of  a  horse  sold  to  one  M'Sherry,  which  had  not 
been  collected.  The  Commissioner,  also  under  the  order  of  the  Court, 
made  a  report  on  the  execution  of  Eli  T.  Hoyt,  one  of  the  creditors  of 
the  intestate,  recommending  that  it  should  be  paid  out  of  the  funds  in 
hand. 

-^Qo-|  *That  part  of  the  report  disallowing  the  charge  against  the 
-■  administrator  for  the  price  of  the  horse,  was  excepted  to  by  the 
creditors  generally,  and  the  exception  was  sustained  by  the  Chancellor. 
And  the  other  creditors  excepted  to  so  much  of  the  report  as  recom- 
mends Hoyt's  execution  to  be  paid  ;  but  this  exception  the  Chancellor 
overruled, 

(a)  See  Davis  v.  Barkley,  1  Bailey,  140;  Mazyck  and  Bell  v.  Coil,  2  Bailey,  101. 


*98]  COLUMBIA,    DECEMBER,    1834.  81 

Both  parties  appealed.  The  facts  connected  with  both  questions  are 
stated  in  the  following  opinion  of  this  Court. 

Clarke  and  3PDoiveU,  for  the  plaintiffs. 

Williams,  for  the  creditors. 

O'Neall,  J.  The  first  part  of  this  case  relates  to  the  appeal  on  the 
part  of  the  plaintiff.  He  contends  that  he  is  not  liable  for  the  price  of  a 
horse  sold  by  him,  as  administrator,  to  a  man  of  the  name  of  M'Slierry. 
The  facts  appear  to  be,  that  at  the  sale  of  his  intestate's  estate,  the  plain- 
tiff sold  the  horse  for  seventy  dollars  on  the  usual  term  of  note  and  secu- 
rity :  the  pui'chaser,  without  complying,  took  off  the  horse  without  the 
plaintiff's  knowledge;  he  pursued  M'Sherry,  and  took  from  him  a  note 
on  one  Eccles,  who  was  then,  and  for  a  year  afterwards,  solvent :  the  note 
was  for  more  than  the  price  of  the  horse,  and  the  plaintiff  paid  M'Sherry 
the  difference. 

From  this  statement,  it  is  apparent  that  the  note  of  Eccles  would  not 
be  regarded  as  the  assets  of  the  estate  ;  it  was  received  in  satisfaction,  it 
is  true,  of  the  price  of  the  horse,  but  the  receipt  of  it  was  the  act  of  the 
administrator  outside  of  his  duty  as  such.  If  loss  has  ensued,  it  must  fall 
on  him.  For  he,  and  not  his  intestate's  estate,  must  be  regarded  as  the 
owner  of  Eccles'  note.  It  was  his  duty,  as  administrator,  to  see  that  the 
terms  of  the  sale  were  complied  with,  by  note  and  security  being  given  for 
the  property,  or  to  resell  it.  If  he  chose  to  take  anything  else  in  satis- 
faction of  the  purchase,  he  made  it  his  own,  and  became  answerable  to 
the  estate — if  the  parties  in  interest  elected  so  to  consider  it,  and  so  to 
deal  ivith  him.  But  the  fact  that  he  paid  more  for  the  note  than  the  price 
at  which  the  horse  was  sold,  shows  that  the  acquisition  of  the  note  was 
his  own  speculation.  We  concur,  therefore,  with  the  Chancellor,  in  sus- 
taining the  exception  to  the  Commissioner's  report  in  this  respect. 

The  second  part  of  the  case  relates  to  Hoyt's  execution.  It  appears 
that  in  the  time  of  M'Creary  it  had  been  levied  by  Mr.  Sheriff 
*Kennedy  of  Chester,  on  a  slave,  who,  if  he  had  been  sold,  would 
have  sold  for  a  sum  greater  than  that  due  on  the  execution  ;  but  he  was 
left  by  the  sheriff  with  M'Creary,  on  his  giving  bond  to  Mr.  Kennedy,  as 
an  individual,  to  deliver  the  said  slave  for  sale.  The  slave  was  carried 
out  of  the  State  by  M'Creary,  or  by  his  consent.  Six  years  after  the  levy 
he  was  brought  back  and  delivered  to  Mr.  Kennedy,  who  entered  a  receipt 
upon  the  bond  for  him  as  delivered  by  the  security  :  he  was  not  sold,  but 
permitted  by  Mr.  Kennedy,  who  had  been  out  of  office  for  some  time,  to 
return  to  his  owner  out  of  the  State.  At  the  time  of  the  levy,  and  for 
several  years  aftei',  and  indeed  until  paid  in  this  case,  there  were  execu- 
tions against  M'Creary,  in  the  sheriff's  office  of  Ciiester  District,  senior 
to  that  of  Hoyt's,  to  an  amount  much  beyond  the  value  of  the  slave. 

A  levy  is,  in  legal  contemplatiou,  satisfaction  of  aji.  fa.,  that  is,  it  is 
presumptive  evidence  that  satisfaction  may  result  or  has  resulted  from  it. 
But  as  soon  as  it  is  shown  how  the  levy  has  been  disposed  of,  and  that 
satisfaction  has  not  and  could  not  have  resulted  from  the  levy,  the  legal 
presumption  is  rebutted,  and  the  execution  may  be  again  levied,  if»it  has 
not  lost  its  active  energy  :  and  if  it  has.  the  judgment  may  be  revived  by 
sci.fa.,  or  sued  upon  in  debt. 


[*99 


"82  SOUTH   CAROLINA   EQUITY    REPORTS.  [*99 

In  this  case,  the  plaintiff  in  execution,  Hoyt,  never  could  have  obtained 
satisfaction  from  the  levy  ;  for,  if  the  slave  had  been  sold,  the  elder  exe- 
cutions must  have  been  first  satisfied  before  he  could  have  received  any- 
thing. They  would  have  taken  up  a  larger  sum  than  the  value  of  the 
slave.  If  he  had  sued  the  sheriff  for  not  selling  the  negro,  he  would  have 
been  answered  as  the  Court  answered  the  plaintiff  in  the  case  of  Gaines 
V.  Downs,  State  Rep.  T2,  that  "  he  (the  sheriff)  was  only  liable  to  them 
who  were  injured  by  his  neglect."  The  senior  execution  creditors  were 
the  persons  in  this  case,  as  in  that,  who  had  the  right  to  complain.  We 
are  therefore  satisfied  with  the  Chancellor's  decree  in  this  respect. 

It  is  ordered  and  decreed,  that  the  Chancellor's  decrees,  upon  these 
two  parts  of  the  same  case,  be  affirmed. 

Harper  and  Johnson,  Js.,  concurred. 


*1001  *C!HAiiLOTTE  H.  Heath  v.  Juriah  Heath,  Executrix,  W.  G. 
-'  Hunt  and  wife,  and  others. 

Contribution,  by  legatees  to  a  child  born  after  the  execution  of  the  will  and  before 
the  testator's  death,  decreed.  [*10l] 

When  the  husband  goes  into  the  Court  of  Equity  to  obtain  possession  of  his  ■wife's 
choses  in  action,  a  suitable  provision  will  be  made  for  her  and  her  children. 
[*104] 

Executrix  being  in  the  receipt  of  the  annual  profits  of  an  estate  which  the  will 
directs  shall  be  paid  over  to  the  legatees  on  their  coming  of  age  or  marriage 
instead  of  paving  it  according  to  the  will,  she  loaned  out  the  whole  amount  from 
time  to  time  to  the  legatees,  and  among  the  rest  to  the  husband  of  one  of  them: 
on  the  parties  being  brought  into  this  Court,  and  the  wife  insisting  on  a  settle- 
ment:— Held,  that  if  the  money  advanced  by  the  executrix  to  the  husband  waa 
intended  as  a  payment  of  his  wife's  share,  the  executrix  will  be  allowed  credit; 
otherwise,  if  as  a  mere  loan.     Reference  ordered  on  this  point.  [*105] 

The  wife's  interest  in  the  shares  of  two  deceased  children,  which  could  not  have 
been  reduced  into  possession  by  the  husband  at  the  time  the  executrix  advanced 
to  him,  is  not  subject  to  the  payment  of  such  advances.  The  fact  that  the  husband 
was  not  entitled  to  possession  until  the  termination  of  a  life  estate,  precludes  the 
possibility  that  a  payment  of  his  wife's  interest  therein  was  intended.  [*1U5] 

Orangeburg. — 

The  bill  stated  that  Frederick  Heath,  the  plaintiff's  father,  executed 
his  last  will  and  testament  the  16th  February,  1807,  and  died  in  1816, 
between  which  periods  the  plaintiff  was  born,  and  therefore  no  provision 
was  made  for  her  by  the  will.  After  giving  three  negroes  to  each  of  his 
children  (except  plaintiff)  when  they  attained  to  twenty-one  years,  or 
married,  and  leaving  the  balance  of  his  estate  to  his  wife,  Juriah  Heath, 
during  her  natural  life,  the  testator  willed  and  directed  as  follows  : — "  la 
case  of  the  death  of  any  of  the  aforesaid  my  children  without  lawful  issue, 
I  desire  that  such  portions  allotted  now  to  them  may  be  taken  and  con- 
sidered as  part  of  the  residue  of  my  estate,  and  divided  as  hereinafter 
directed.  After  the  decease  of  my  dearly  beloved  wife,  Juriah  Heath, 
my  will  and  desire  is,  that  the  residue  of  my  estate  shall  be  equally  divided 
amongst  my  children  hereinbefore  named,  to  them  or  the  survivor  or  sur- 
vivors of  them.     And  as  it  is  my  desire  that  an  increasing  fund  should 


*100J  COLUMBIA,    DECEMBER,    183-i.  83 

arise  for  the  benefit  of  mj  children,  I  direct  my  executrix  and  executors, 
hereafter  mentioned,  to  iiave  my  pUxnting  interest  carried  on,  and  that 
the  moneys  arising  from  the  crops,  after  deducting  what  may  be  deemed 
necessary  house  and  plantation  expenses  yearly,  that  the  overplus  may  be 
put  out  to  lawful  interest,  and  that  such  of  ray  children  as  may  want 
education,  I  desire  that  they  may  be  put  to  school  and  educated  as  amply 
as  those  of  my  children  in  my  life-time  ;  that  the  expenses  thereof  to  be 
paid  out  of  the  interest  arising  from  such  money  so  put  out  to  interest  : 
And  when  the  children  come  of  lawful  age,  or  marry,  ray  desire  is  that 
each  may  draw  an  equal  portion  of  said  money,  to  be  laid  out  for  them 
for  such  purposes,  the  most  advantageous,  as  my  said  executrix  and  exe- 
cutor deem  the  most  proper  and  expedient  for  their  interest."  Benjamin 
Hart  and  Juriah  Heath  were  appointed  executor  and  executrix,  the  latter 
of  whom  alone  assumed  the  execution  of  the  trust.  After  testator's  death 
Wade  and  Mary,  two  of  his  children,  died  under  age  and  unmarried,  and 
their  interests  under  the  will  continued  in  the  possession  of  the  executrix, 
as  tenant  for  life.  The  testator's  other  children  *have  either  mar-  r*ini 
ried.  or  are  of  lawful  age.  The  object  of  the  bill  was  to  compel  ^ 
the  other  children  to  contribute  to  make  up  a  share  for  the  plaintiff, 
according  to  their  respective  interests  under  the  will ;  and  that  plaintiif 's 
interest  in  the  surplus  arising  from  the  crops  may  be  ascertained  and  paid 
to  her,  and  also  that  her  right  to  the  balance  of  testator's  estate,  in  the 
possession  of  the  executrix  for  life,  might  be  declared.  Juriah  Heath, 
the  executrix,  admitted  by  her  answer  that  the  testator  made  a  will  of  the 
tenor  and  effect  set  forth  in  the  bill,  and  that  plaintiff  was  born  after  the 
execution  of  the  will,  and  before  testator's  death,  and  is  unprovided  for 
by  it.  She  says  that  a  considerable  sum  has  been  raised  from  the  annual 
crops,  besides  what  was  necessary  for  plantation  expenses,  and  that  she 
has  loaned  to  each  child  (except  plaintifi")  a  considerable  sum,  and  took 
their  notes  for  the  same,  believing  this  the  most  advisable  step  until  a 
final  distribution  of  the  fund  could  be  made,  and  that  she  is  ready  to 
account.  She  also  admits  that  Mary  and  Wade,  two  of  the  children,  are 
dead,  and  that  their  shares  are  in  her  hands  as  tenant  for  life,  but  that 
she  will,  under  the  authority  and  sanction  of  the  Court,  deliver  them  to 
her  children  for  division. 

William  G.  Hunt  and  wife,  by  their  answer,  admitted  that  plaintiff  was 
born  after  the  execution  of  the  will,  and  unprovided  for  by  it,  and  that 
Mrs.  Hunt  received  four  negroes  and  some  other  personal  property  from 
the  testator  in  his  lifetime  ;  but  that  they  never  received  any  part  of  his 
estate  since  his  death.  William  Gr.  Hunt  stated  that  he  had  borrowed 
from  the  executrix,  out  of  (as  he  understood)  the  funds  of  the  estate, 
about  §1500,  but  these  defendants  submitted  that  they  could  not  be  called 
upon  to  contribute  to  the  plaintiff,  until  a  full  account  of  the  executrix's 
administration  be  taken. 

The  other  defendants,  John  Kaigler  and  wife,  and  Frederick  and 
Francis  Heath,  filed  no  answer,  and  the  bill  was  taken  f>ro  confesso 
against  them. 

The  Coramissioner  made  a  i-eport  to  January  Term,  1831,  stating  the 
amount  received  by  each  legateee,  and  the  amount  in  the  hands  of  the 
executrix,  and  that  she  had  loaned  to  her  children  about  $7,988.  At 
the  hearing,  Chancellor  De  Saussure  decreed,  that  an  average  should  be 


84  SOUTH   CAROLINA   EQUITY   REPORTS.  [*101 

made  of  the  whole  estate  devised  and  beqneatlied  to  the  other  children, 
and  the  plaintiff's  share  paid  to  her  ;  and  the  executrix  having  relin- 
*in9l  Q*^!^^'^*^*^^  ^^^^  interest  for  life  to  *the  estate  of  the  two  deceased 
"'-'  children,  lie  ordered  their  shares  to  be  divided  among  the  surviving 
children.  The  Chancellor  also  decreed  that  the  surplus  fund  laid  out  on 
interest  should  be  divided  equally  among  the  surviving  children,  and  that 
the  estate  not  specifically  bequeathed,  and  not  forming  part  of  the  surplus 
from  the  annual  crops,  should,  on  the  death  of  the  tenant  for  life,  be 
divided  among  the  testator's  children,  including  the  plaintiff.  In  obedi- 
ence to  the  decree,  the  Commissioner,  at  January  Term,  1832,  made  his 
report,  fixing  the  share  which  each  legatee  should  ratably  contribute  to 
the  plaintiff,  and  also  ascertaining  the  amount  due  by  the  executrix, 
including  the  sales  of  some  personal  estate,  cash  on  hand  at  the  testator's 
death,  and  the  surplus  arising  from  the  cnnual  crops,  which  the  Com- 
missioner reported  to  be  $9,2G9  57, — or  each  child's  share  $1,813  91. 

The  defendants.  Hunt  and  wife,  excepted  to  that  part  of  the  report 
which  fixes  the  share  to  be  contributed  by  each  legatee,  and  Chancellor 
Johnston  referred  the  case  back  to  the  Commissioner,  and  established 
principles  to  govern  him  in  calculating  the  value  of  the  property,  received 
by  the  legatees  under  the  will  ;  and  he  also  ordered  that  a  writ  of  parti- 
tion should,  on  application,  be  issued  to  divide  the  shares  of  the  deceased 
children. 

At  January  Term,  1834,  the  Commissioner,  conformably  to  Chancellor 
Johnston's  directions,  reported  the  amount  which  each  legatee  should 
contribute,  and  ascertained  the  amount  due  by  William  Gr.  Hunt  and 
wife  to  be  $150,  with  interest  from  the  25th  March,  1829.  It  also  ap- 
peared that  the  testator,  in  1816,  left  forty-two  negroes,  which,  in  Janu- 
ary, 1832,  had  increased  to  seventy-five  ;  that  the  amount  of  money 
loaned  to  William  G.  Hunt  by  the  executrix,  on  his  individual  responsi- 
bility, with  interest  to  the  10th  January,  1832,  exceeded  the  amount 
which  the  executrix  was  indebted  to  him  upwards  of  $1000.  It  was  proved 
that  the  executrix  besides  raising  thirty-three  negroes,  had  realized  from 
the  plantation  upwards  of  $10,000  in  sixteen  years,  and  it  was  admitted 
that  William  Gr.  Hunt  is  insolvent.  No  exceptions  were  taken  to  this 
amended  report. 

Mr.  Glover,  on  the  part  of  the  executrix,  moved  for  confirmation  of  the 
report,  and  at  the  same  time  for  an  order  subjecting  the  interest  of 
William  G.  Hunt  and  wife,  in  the  negroes  of  the  two  deceased  children, 
to  the  payment  of  the  amount  due  by  Hunt  and  wife  to  the  plaintiff ;  and 
also  for  the  balance  due  by  the  same  to  the  executrix,  Juriah  Heath,  for 
5^-|„o-|  money  loaned.  And  that  Mrs.  Hunt's  interest  in  her  father's 
-'  estate  (subject  to  these  payments)  be  settled  on  her  and  her  issue. 

The  motion  was  opposed  by  Mr.  Chappell :  1.  As  regards  the  lien  to 
the  plaintiff.  2.  As  concerns  the  lien  for  Hunt's  debts.  3.  As  respects 
the  form  of  the  settlement,  which,  under  the  circumstances,  he  insisted 
should  be  referred  to  the  Commissioner. 

Chancellor  Johnston  made  the  following  order  in  lieu  of  that  moved  : 

"It  is  ordered,  that  the  amended  report  of  the  Commissioner  (dated 
the  10th  inst. )  be  confirmed.  It  it  further  ordered,  that  when  the  negroes, 
of  which  Wade  and  Mary  died  possessed,  shall  be  divided,  the  share  that 
may  be  allotted  to  William   G.  Hunt,  and  Elizabeth  his  wife,  shall  be 


*103]  COLUMBIA,    DECEMBER,    1834.  85 

subject  to  the  payment  of  $450,  with  interest  agreeably  to  said  report, 
which  the  said  William  G.  Hunt  and  wife  are  required  by  the  Oonimis- 
sioner's  report  to  contribute  to  Charles  H.  Heath.  And  the  Commis- 
sioner is  hereby  directed  to  report  the  trusts  deemed  by  him  most  proper 
for  a  settlement  of  Mrs.  Hunt's  share." 

The  executrix,  Mrs.  Heath,  appealed,  and  now  moved  this  Court  to 
enlarge  the  order  so  as  to  subject  the  interest  of  Mrs.  Hunt  to  the  pay- 
ment of  the  amount  due  to  her,  as  executrix,  by  William  G.  Hunt. 

Glover,  for  the  appellant. 

ChappeU,  contra. 

O'Neall,  J.  The  questions  to  be  decided,  arise  between  the  co-de- 
fendants, Mr.  Heath,  and  Hunt  and  wife.  To  a  clear  perception  and  a 
just  decision  of  them,  a  summary  of  the  facts  may  be  useful.  Mrs.  Heath 
and  Mrs.  Hunt  are  the  widow  and  one  of  the  children  of  Frederick 
Heath,  who,  among  other  things,  by  his  will,  directed  the  annual  profits 
of  his  estate  to  be  put  to  interest  as  a  fund  for  the  education  of  his 
children  ;  and  the  will  directs,  "when  the  children  come  of  lawful  age  or 
marry,  my  will  and  desire  is,  that  each  may  draw  an  equal  portion  of  said 
money,  to  be  laid  out  for  them  for  such  purposes  the  most  advantageous, 
as  my  said  executrix  and  executor  deem  the  most  proper  and  expedient 
for  their  use."  The  executrix,  Jnriah  Heath,  managed  the  estate  with 
great  prudence,  and  realized  large  annual  profits.  Instead,  however,  of 
paying  it  out  to  the  children  as  they  came  of  age,  or  *married,  r^ini 
she  loaned  out  the  whole  sum  amongst  them,  and  the  defendant,  *- 
William  G.  Hunt,  borrowed  a  part  of  it,  which  with  the  interest  now 
amounts,  it  is  said,  to  near  $3000,  greatly  exceeding  Mrs.  Hunt's  share 
of  this  fund. 

Since  the  death  of  the  testator,  two  of  his  children  and  devisees.  Wade 
and  Mary,  have  died  without  issue  :  in  such  an  event,  the  testator's  will 
directs  that  their  parts  of  his  estate  should  fall  into  the  residuum,  which 
is  bequeathed  to  his  widow  and  executrix,  Jnriah,  for  life,  and  at  her 
death  to  be  equally  divided  among  his  surviving  children.  In  this  case 
Mrs.  Heath  has  surrendered  her  life  estate  in  the  parts  of  the  said  Wade 
and  Mary,  which  are  now  therefore  divisible  among  the  testator's 
children. 

It  is  contended  on  the  part  of  Mrs.  Heath,  that  she  is  entitled  to  de- 
duct and  retain  Mrs.  Hunt's  share  of  the  annual  profits  of  the  estate,  out 
of  Mr.  Hunt's  debt  to  her  for  money  loaned  out  of  the  said  fund  ;  and 
that,  for  the  balance  of  his  debt,  she  is  entitled  to  a  lien  on  Mrs.  Hunt's 
share  of  the  parts  of  Wade  and  Mary,  now  divisible.  Mrs.  Hunt 
opposes  these  claims,  and  sets  up  her  equity  to  have  a  suitable  provision 
made  for  her  and  her  children,  out  of  this  her  estate.  Her  husband, 
William  G.  Hunt,  it  seems,  is  entirely  insolvent. 

The  case  will  be  considered,  first,  as  to  Mrs.  Hunt's  share  of  the  annual 
profits  of  the  estate  ;  and  second,  as  to  her  share  of  Wade  and  Mary's 
parts.     Before,  however,  taking  up  the  separate  consideration  of  each  of 
these  parts  of  the  case,  it  will  be  well  to  state  some  general  principles 
alike  applicable  to  both. 
Vol.  I.— 29 


86  SOUTH    CAROLINA    EQUITY    REPORTS.  [*104 

There  is  no  doubt,  when  the  wife  has  a  perfect  legal  estate  in  goods 
and  chattels,  whether  it  be  in  severalty,  joint  tenancy,  in  common  or  in 
coparcenery,  it  will  vest  in  the  husband  jure  mariti;  but  if  her  interest 
be  a  mere  chose  in  action  at  law,  or  a  mere  equity,  as  where  money  and 
other  property  is  in  the  hands  of  an  executor  or  a  trustee  for  the  use  of 
a  feme  covert,  the  husband  has  no  legal  right  until  he  reduces  them  into 
possession.  If  he  can  do  this  without  the  aid  of  a  Court  of  Equity,  he 
will  hold  them  discharged  of  the  rights  of  his  wife  ;  but,  if  by  the  decree 
of  the  Court  of  Equity,  he  is  to  obtain  possession,  the  wife's  equity  to 
have  a  suitable  provision  made  for  her  and  her  children,  will  be  sup- 
ported and  enforced. 

First.  The  question  as  to  the  application  of  Mrs.  Hunt's  share  of  the 
^,^r-i  annual  profits  of  the  estate  to  the  extinguishment  of  the  *debt  for 
-'  money  loaned  to  Hunt  by  Mrs.  Heath,  will  depend  upon  the  fact, 
whether,  when  she  advanced  the  money  to  Hunt,  she  intended  it  as  a 
payment.  For  there  can  be  no  doubt  that  Mrs.  Hunt,  who  is  understood 
to  have  been  of  full  age  before  her  marriage  with  Mr.  Hunt,  could  at  any 
time  have  claimed  the  payment  of  her  share  before  her  marriage;  and 
after  that  event  she  and  her  husband  were  entitled  to  receive  it  at  any 
time  when  they  thought  proper  to  demand  it.  If  the  husband  alone  had 
received  it,  it  would  have  been  such  a  reduction  into  possession  as  would 
have  barred  her  equity.  This  part  of  the  case  may  therefore  have  a  dif- 
ferent result  from  that  which  remains  to  be  considered,  if  it  should  appear 
on  the  reference  that  the  money  loaned  to  Hunt  was  intended  to  be  for 
his  wife's  share  of  this  fund.  In  that  event  the  Commissioner  will  ascer- 
tain the  amount  due  Mrs.  Hunt  when  her  husband  received  the  money, 
and  apply  her  share  to  the  amount  then  received.  But  if  it  appears  that 
the  money  advanced  was  not  intended  for  his  wife's  share,  but  was  a  mere 
loan  for  interest,  then  the  question  will  arise,  whether  the  wife's  equity 
can  be  made  liable  for  the  debt  of  the  husband  ;  which  will  depend  upon 
and  be  decided  by  the  view  which  shall  be  taken  of  the  second  part  of 
this  case. 

Second.  Can  the  share  of  Mrs.  Hunt  of  the  parts  of  Wade  and  Mary, 
be  declared  liable  to  the  payment  of  any  sum  advanced  by  Mrs.  Heath  to 
William  Gr.  Hunt,  out  of  the  profits  of  the  estate  ?  I  think  not.  This 
is  an  equitable  chose  in  action,  not  reducible  into  possession  by  Mr. 
Hunt  at  the  time  he  received  the  money  from  Mrs.  Heath.  This  pre- 
cludes the  possibility  that  a  payment  was  then  intended.  But  he  could 
not  at  any  time  have  reduced  it  into  possession,  until  by  the  decree  of 
this  Court  it  is  made  available  ;  for  it  was  a  mere  expectancy  in  remainder 
among  several  joint  tenants  after  the  death  of  Mrs.  Heath,  until  she 
surrendered  in  this  case  her  life  estate,  and  the  Court  decreed  partition. 
To  permit  such  an  Interest  to  be  made  liable  for  the  husband's  debt 
would  defeat  the  wife's  equity.  For,  whether  he  be  solvent  or  insolvent, 
the  same  result  would  follow  ;  his  debt  would  be  no  provision  for  the 
wife.  But  in  equity,  he  must,  whether  he  be  plaintiff  or  defendant,  if 
^,Q„-,  he  receive  his  wife's  portion  *by  the  decree  of  the  Court,  make  an 
■^  adequate  settlement  upon  her.  If  the  wife's  portion  is  to  be  re- 
garded as  paid  to  him  in  his  own  debt,  he  might,  if  solvent,  be  compelled 
to  settle  the  same  sum ;  but  if  he  was  insolvent  he  could  not  do  this,  and 
the  wife  would  be  left  unprovided  for.  But  the  Court  would  never 
suffer  the  wife's  fortune  to  be  applied  to  the  husband's  debt,  only  where 


*106]  COLUMBIA,    DECEMBER,    1834.  87 

it  could  regard  him  as  a  purchaser  of  it  by  a  previous  or  a  present  ade- 
quate settlement. 

The  cases  which  I  have  looked  into,  it  seems  to  me,  sustain  these 
views,  except  the  last,  which  is,  I  think,  a  necesary  deduction  from  the 
preceding. 

In  Howard  and  wife  v.  Moffatt,  2  John.  C.  R.  206,  which  was  the 
case  of  husband  and  wife,  suing  for  the  money  of  the  wife  in  the  hands 
of  her  brother,  and  which  she  had  requested  should  not  be  paid  over  to 
her  husband,  the  Chancellor  said,  "  the  general  rule  is,  that  where  the 
aid  of  the  Court  is  I'equisite  to  enable  the  husband  to  take  possession  of 
the  wife's  property,  he  must  do  what  is  equitable  by  making  a  reasonable 
provision  out  of  it  for  her  maintenance  and  that  of  her  children,  and  with- 
out that,  the  aid  of  the  Court  will  not  be  afforded  him.''''  If  Hunt 
could  not  receive  his  wife's  fortune  without  making  a  settlement,  it  would 
seem  to  follow  that  Mrs.  Heath,  who  can  have  no  greater  rights  thp,u  he 
has,  must  at  least  consent  to  and  make  an  adequate  settlement  before  she 
could  claim  to  have  it  made  liable  to  her  debt. 

In  Kenny  v.  TJdal  &  Kenny,  5  John.  C.  R.  464,  which  was  a  hill 
against  the  husband  and  the  assignee  of  husband  and  wife  (when  an 
infant)  of  the  wife's  equity  :  the  Chancellor  held,  that  the  assignment 
was  null  and  void.  In  that  case,  at  page  473,  he  said,  "  It  is  now  under- 
stood to  he  settled,  that  the  wife's  equity  attaches  upon  her  personal 
property  lohen  it  is  subject  to  the  jurisdiction  of  the  Court  and  is  the 
object  of  the  suit,  into  whosesoever  hands  it  may  have  come,  or  in  what- 
ever manner  it  may  have  been  transferred."  In  Haviland  v.  Myers,  6 
John.  C.  R.  2t,  the  Chancellor  said,  "the  wife's  equity,  to  a  suitable 
provision  for  the  maintenance  of  herself  and  children,  out  of  her  separate 
real  and  personal  estate  descended  or  devised  to  her  during  coverture,  is 
well  established,  and  would  prevail  equally  against  the  husband  or  his 
assignee,  or  any  sale  made  or  lieu  created  by  him,  even  for  valuable 
consideration,  or  in  payment  of  a  just  debt ;  and  whether  the  suit  in 
protection  of  that  equity  be  instituted  by  the  wife,  or  by  any  *other  p^,,  ^^ 
person  on  her  behalf."  These  authorities  are  too  clear  to  admit  •- 
of  a  doubt  that  the  wife's  fortune  cannot  jure  mariti,  be  decreed  in 
equity  to  be  paid  to  the  husband,  his  assignee  or  creditor,  until  a  suitable 
provision  has  been  made  for  the  wife  and  her  children.  In  this  State,  in 
Durr  u.  Bowyer,  2  M'C.  Ch.  R.  372,  the  same  principles  were  acknowl- 
edged and  supported.  In  that  case,  my  brother  Johnson,  speaking  of 
the  wife's  equity,  and  after  having  ruled  that  the  Court  will  not  suffer  it 
to  be  removed  out  of  the  jurisdiction  until  provision  is  made,  says : 
"the  same  protection  is  afforded  to  the  wife  in  op>position  to  others 
claiming  through  the  husband,  whether  their  claims  arise  by  operation 
of  law,  as  in  cases  of  bankruptcy  or  insolvency,  or  under  the 
voluntary  assignment  of  the  husband  for  a  valuable  consideration.''^ 

In  this  case,  Mrs.  Heath  claims  under  Hunt,  and  as  his  creditor;  but 
she  has  not  as  high  claims  as  she  Avould  have  were  she  his  assignee  by 
operation  of  law,  or  by  his  own  deed.  How  can  it  be  pretended  that 
she  is  entitled  to  make  the  wife's  fortune  lial)le  to  a  claim  against  the  hus- 
band, unaccompanied  by  even  his  consent  to  t-uch  a  course,  when  it  is 
clear  that  even  his  assignment  could  not  prevail  against  her  rights  ? 


88  SOUTH    CAROLINA    EQUITY    REPORTS.  [*107 

In  Thomas  v.  Sheppard,  2  M'C.  Ch.  R.  36,  the  Court,  upon  principles 
and  for  reasons  which  are  to  my  mind  clearly  erroneous,  refused  to  set  up 
the  wife's  equity,  yet  recognized  and  acknowledged  the  rules  which  I  have 
already  stated. 

From  these  views,  it  is  clear  that  the  share  of  Mrs.  Hunt,  of  the  parts 
of  "Wade  and  Mary,  is  not,  and  cannot  be  made,  liable  to  the  payment  of 
any  sum  advanced  by  Mrs.  Heath  to  Wm.  G.  Hunt,  out  of  the  annual 
profits  of  the  estate. 

The  Chancellor's  decree,  directing  a  settlement  of  this  part  of  Mrs. 
Hunt's  equity,  and  referring  it  to  the  Commissioner  to  report  the  proper 
trusts  for  a  settlement  thereof,  is  affirmed.  It  is  also  ordered  and  decreed, 
that  the  Commissioner  inquire  and  report  whether  the  executrix,  Mrs. 
Heath,  intended,  and  Mr.  Hunt  accepted  the  money  loaned  to  him,  as  an 
indirect  payment  of  Mrs.  Hunt's  share  ot  the  annual  profits  of  the  estate  ; 
if  so,  that  her  share  be  applied  in  extinguishment  of  the  sum  so  advanced 
at  the  time  advanced  ;  but  if  not,  that  he  report  the  proper  trusts  of  a 
settlement  of  her  share  of  the  annual  profits. 

Butler,  J.,  (sitting  for  Harper,  J.,  who  was  absent)  concurred. 
Johnson,  J.,  dissented. 


*108]    *JoHN  Bell,  Survivor,  v.  Ann  and  Elizabeth  Coiel. 

Generally  the  declarations  of  a  grantor  made  after  a  sale  cannot  be  admitted  to 
impeach  the  sale;  but  where  there  is  a  community  of  interest  and  design  in 
several,  or  circumstances  showing  a  conspiracy  between  the  grantor  and  the 
defendants  to  defraud  the  plaintiflF,  such  declarations  would  be  admissible.  [*109] 

Where  the  husband  would  be  a  competent  witness  the  wife  would  be  sworn:  and 
where  the  husband  if  living  would  have  been  competent  to  prove  fraud  in  a  deed 
from  himself  to  his  sisters,  his  wife  is  competent  to  prove  his  acts  and  declara- 
tions. [*110] 

Lancaster. — Before  Chancellor  De  Saussure,  July,  1834. 

The  plaintiS",  a  judgment  creditor  of  Alston  Coiel,  filed  this  bill  to  set 
aside  a  bill  of  sale  for  negroes  which  the  latter  had  made  to  the  defend- 
ants, his  sisters,  alleging  it  to  have  been  executed  with  an  intent  to  defraud 
creditors.  The  Chancellor,  by  his  decree,  declared  the  bill  of  sale  void, 
and  the  property  subject  to  the  payment  of  Coiel's  debts  ;  and  the  defend- 
ants appealed.  The  only  grounds  which  need  be  stated,  and  the  facts 
connected  with  them,  are  set  out  in  the  opinion  of  this  Court. 

Clarke  and  Clinton,  for  the  appellants. 

De  Saussure,  contra. 

Johnson,  J.  Excluding  altogether  the  evidence  which  is  regarded  as 
exceptionable  in  the  grounds  of  this  motion,  and  which  was  expressly 
reserved  by  the  Chancellor,  we  concur  with  him  that  the  merits  are  with 
the  plaintiff ;  and  that  might  suffice  for  the  case  itself,  but  there  are  some 
questions  of  law  arising  out  of  it  which  deserve  a  more  particular  con- 


*108]  COLUMBIA,    DECEMBER,    1834.  89 

sideration,  and  I  shall  notice  the  circumstances  only  so  far  as  may  be 
necessary  to  show  their  application. 

The  plaintiff  was  the  creditor  of  Alston  Coiel,  for  a  large  amount,  for 
which  he  had  obtained  judgment.  A  ca.  sa.  was  issued,  on  which  he  was 
arrested  and  coraraitted  to  jail,  where  he  died  insolvent ;  and  the  object 
of  this  bill  was  to  set  aside  a  bill  of  sale  executed  by  him,  not  long  before 
his  arrest,  to  the  defendants,  his  sisters,  for  ten  negroes,  on  the  ground 
that  it  was  covinous  and  intended  to  defraud  the  plaintiff  and  others,  his 
creditors,  and  to  charge  the  negroes  with  the  payment  of  his  debts.  To 
prove  the  fraud,  Mrs.  Terry  (late  widow  of  Alston  Coiel),  and  who  had 
formally  released  her  interest  in  his  estate,  was  sworn  for  the  plaintiff. 
It  appeared  that  during  his  confinement  Alston  Coiel  had  intended  to 
render  a  schedule  of  his  estate,  with  a  view  to  apply  for  the  benefit  of  the 
insolvent  debtor's  act,  and  the  defendants  being  apprehensive  that  he 
would  include  these  negroes  in  it,  one  of  them  (Elizabeth)  entreated  this 
witness  to  advise  him  against  it,  saying  *that  witness  would  be  r^-iAq 
as  much  benefited  as  herself — she  did  speak  to  him  on  the  sub-  L 
ject,  and  he  stated  in  reply  that  the  negroes  were  in  truth  his  own — that 
defendants  had  never  paid  anything  for  them — that  he  had  evidence 
which  would  show  it,  and  would  not  swear  a  lie  about  it. 

Two  objections  are  raised  to  the  admissibility  of  this  evidence  :  First, 
That  being  declarations  made  after  the  execution  of  the  bill  of  sale  to 
the  defendants,  they  were  inadmissible.  Secondly,  That  the  widow  of 
Alston  Coiel  was  an  incompetent  witness  to  prove  his  declarations. 

First.  The  general  rule  certainly  is,  that  the  declarations  of  third 
persons  are  not  evidence  for  or  against  the  parties,  nor  will  the  declara- 
tions or  admissions  of  a  grantor  or  seller,  made  subsequently  to  the  grant 
or  sale,  be  received  against  the  grantee  or  buyer,  because,  having  been 
divested  by  the  grant  or  sale  of  the  thing  granted  or  sold,  neither  his  acts 
nor  declarations  can  divest  the  rights  which  arise  out  of  them.  But 
where  there  is  a  community  of  interest  or  design  in  several,  in  relation  to 
the  same  subject-matter,  and  that  fact  is  clearly  established,  the  acts  and 
declarations  of  one  in  reference  to  it  are  I'eceived  in  evidence  against  the 
others.  Thus  the  admissions  of  one  partner,  in  relation  to  the  partner- 
ship concerns,  are  evidence  against  the  others  ;  so  of  the  admissions  of 
one  of  several  joint  makers  of  a  promissory  note  that  is  not  paid  ;  so  in 
the  King  v.  The  Inhabitants  of  Harwicke,  11  East.  585,  where  Lord 
Ellenborough,  recognizing  the  general  rule  that  the  admissions  of  one  of 
several  defendants  in  trespass  is  not  admissible  to  prove  that  the  others 
were  co-trespassers,  yet  lays  it  down,  that  if  they  be  established  to  be  co- 
trespassers  by  other  competent  evidence,  the  declaration  of  one,  as  to  the 
motives  and  circumstances  of  the  trespass,  will  be  evidence  against  all 
who  are  proved  to  be  combined  together  for  the  common  object.  Very 
many  examples,  founded  on  the  same  principle,  might  be  drawn  from 
cases  of  conspiracy,  where  the  rule  is  (the  fact  of  conspiracy  being  proved), 
the  admission  of  one  is  evidence  against  all  the  conspirators.  (See  Star- 
kie,  part  iv.,  407,  tit.  Conspiracy.) 

Independently  of  the  particulars  before  stated,  the  circumstances  of  this 
case  create  a  very  strong  presumption  that  there  was  a  combination 
between  the  defendants  and  Alston  Coiel  to  defraud  the  ])laintiff;  but 
that  presumption  appears  to  me  necessarily  to  grow  out  of  the  facts 


90  SOUTH   CAROLINA    EQUITY    REPORTS.  [*109 

^,,„-,  stated  by  Mrs.  Terry.  If  the  transaction  *was  bona  fide,  how 
-J  were  the  plaintiffs  interested  in  Alston  Coiel's  including  or  not 
including  those  negroes  in  his  schedule  ?  What  motive  could  they  have 
had  to  induce  his  wife  to  practice  upon  him  to  prevent  it,  unless  it  was 
the  consciousness  that  the  transaction  would  not  bear  investigation  when 
opposed  by  an  honest  purpose  on  his  part  ?  These  circumstances 
sufficiently  show  the  combination,  and  according  to  the  rule,  his  decla- 
rations were  admissible. 

Second.  In  general,  the  wife  cannot  be  examined  for  or  against  the 
husband,  or  in  any  case  to  which  he  is  a  party,  or  in  which  he  may  be 
interested  ;  and  the  rule  is  so  imperious  that  it  cannot  be  dispensed  with 
even  when  the  husband  consents  that  she  may  be  sworn  against  him. 
Barker  v.  Dixer,  Ca.  Tern.  Hardwicke,  2G4.  The  only  exception 
allowed  is  in  the  case  of  personal  violcee  done  by  the  husband  to  the 
wife,  when  she  is  admitted  from  necessity  :  and  in  Aveson  v.  Kinnaird, 
6  East.  192,  it  is  said  arguendo  that  the  dissolution  of  the  marriage  by 
divorce,  or  even  death,  will  not  absolve  the  wife  from  the  obligation  to 
preserve  the  secrets  of  her  husband  inviolate.  But  when  the  husband 
himself  would  be  a  competent  witness,  the  wife  may  be  sworn,  and  if  the 
party  might  insist  on  swearing  the  husband,  and  by  this  means  obtain 
the  truth,  it  would  be  straining  the  rule  of  policy  too  far  to  deprive  him 
of  the  evidence  of  the  wife  when  that  of  the  husband  could  not  be 
obtained.  Williams  v.  Johnson,  1  Str.  505;  Starkie  Ev.,  part  iv.  109. 
Now  Alston  Coiel  stood  indifferent  between  these  parties,  for  although 
he  was  interested,  his  interest  was  equally  balanced  on  both  sides.  If 
the  plaintiff  recovered,  this  would  have  been  so  much  subtracted  from 
his  debt  due  them,  and  he  would  have  been  liable  to  the  defendants  for 
the  value  of  the  negroes — if  the  defendants,  then  he  would  have  been 
still  the  debtor  of  the  plaintiff  in  the  whole  amount.  He  might,  there- 
fore, have  been  sworn,  and  consequently  the  plaintiffs  are  entitled  to  the 
benefit  of  the  wife's  evidence. 

Decree  affirmed. 

O'Neall,  J.,  and  Harper,  J.  concurred. 


*111]        *JoHN  Backler,  and  others,  vs.  W.  Farrow,  and  others. 

On  a  bill  for  partition,  the  Court,  in  ordering  an  account  for  rents  and  profits,  may 
also  decree  compensation  for  the  deterioration  of  the  laud  by  cultivation,  as  for 
waste.  [*111] 

Spartanburgh. — June,  1834. 

The  bill  in  this  case  was  filed  for  partition.  The  defendants  had  been 
for  many  years  in  possession  of  the  land,  and  cultivated  it,  by  which  its 
value  was  impaired  The  Appeal  Court  in  December,  1832,  after  par- 
tition had  been  made,  ordered  an  account  to  be  taken  of  the  rents  and 
profits,  and  in  the  opinion  of  the  Court  the  following  language  is  held : 
"Rent,  which  the  land  was  rendered  capable  of  producing  by  the  labor 
and  expense  of  the  tenant  in  possession,  as  by  erecting  buildings,  or 


*111]  COLUMBIA,   DECEMBER,    1834.  91 

clearing,  or  draining  lands,  is  not  to  be  taken  into  the  account.  But  if 
by  any  of  these  means,  the  land  has  deteriorated  in  value,  he  is  account- 
able for  this  as  for  waste.  The  motion  is  granted,  and  a  reference  on 
these  principles  ordered."  On  the  reference,  it  appeared  that  the  whole 
of  the  land  had  been  rendered  capable  of  producing  rent  by  the  lal)or  of 
the  defendants,  and  that  it  had  also  deteriorated  in  value  in  conse(juence 
of  their  cultivation  to  an  amount  reported  by  the  Commissioner.  On 
exception  being  taken  to  the  report,  the  Chancellor  sent  it  back  to  the 
Commissioner,  on  the  ground  that  it  was  not  made  up  in  conformity  to 
the  decree  of  the  Appeal  Court. 

The  plaintiffs  now  move  this   Court  to  reverse  the  decision  of  the 
Chancellor,  and  to  confirm  the  report. 

Boho,  for  tlie  appellants,  submitted  the  case  on  the  above  brief,  without 
argument. 

Harper,  J.  This  case  is  very  imperfectly  presented  to  us  in  the 
absence  of  counsel.  The  exception  to  the  Commissioner's  report  seems 
to  have  been  sustained  on  the  ground  that  damages  for  waste  cannot  Ijc 
recovered  in  this  Court ;  the  remedy  being  at  law.  This,  no  doubt,  is  in 
general  true  ;  but  having  proper  jurisdiction  of  the  case,  there  is  hardly 
any  question  in  relation  to  property,  which  this  Court  may  not  determine 
incidentally  for  the  purpose  of  doing  complete  justice,  and  preventing 
multiplicity  of  litigation.  The  rule  is  laid  down  in  the  case  of  Jesus 
College  V.  Bloom,  3  Atk.  262 ;  Amb  54,  that  a  bill  will  not  lie  for  waste 
merely;  but,  if  the  party  be  properly  in  Court  for  another  purpose, 
*as  to  obtain  an  injunction,  then  an  account  of  past  waste  will  be  p^,  ,£, 
granted.  The  principle  is  very  fully  illustrated  in  the  reasoning  ^ 
of  the  case.  There  are  many  cases  in  which  an  account  has  been  allowed 
of  the  produce  of  mines ;  and  the  opening  of  mines  is  waste.  There  is 
no  question  but  that  the  Court  was  properly  in  possession  of  this  case, 
and  incident  to  it  was  the  account  for  rents  and  profits,  and  the  account 
for  waste. 

The   motion   is   therefore    granted,    and   the    Commissioner's   report 
confirmed. 

Johnson,  J.,  and  O'JSTeall,  J.,  concurred. 


Jane  Smith,  and  others,  vs.  James  Smith,  and  others. 

The  costs  of  a  judgment  on  an  administration  bond  against  the  surety  (or  coadmin- 
istratrix,)  who  was  subrogated  to  the  rights  of  the  creditor,  cannot  rank  as  a 
bond  debt.  [*112] 

Spartanburgh. — June,  1834. 

O'Neall,  J.  Jane  Smith  and  William  R,.  Smith  administered  upon 
the  estate  of  James  Smith  :  William  R.  Smith  had  the  entire  manage- 
ment of  the  estate,  and  all  the  funds  were  received  l)y  him  :  Jane  Smith, 
however,  survived  him,  and  William  Bradford,  as  guardian,  recovered 


92  SOUTH    CAROLINA    EQUITY    REPORTS.  [*112 

against  her  as  surviving  administratrix,  the  sura  of  $230  50,  with  interest 
from  the  first  of  March,  1809,  vi'hich  she  paid  on  the  16th  of  September, 
1824  :  she  also  paid  $60  87  costs. 

Inasmuch  as  Jane  Smith's  liability  for  the  payment  of  the  principal 
sum  and  interest  recovered,  arose  out  of  the  administration  of  William 
R.  Smith,  she  was  in  equity  substituted  for  the  creditor,  and  was  held 
to  be  entitled  to  be  paid  as  a  bond  debt. 

The  Commissioner  and  Chancellor  have  allowed  the  costs  of  that 
recovery  to  stand  upon  the  same  ground ;  but  this  is  inadmissible,  the 
costs  never  were,  in  any  point  of  view,  such  a  demand  as  could  have  been 
recovered  on  the  administration  bond.  They  could  not,  therefore,  have 
rank  as  a  bond  debt. 

But  Jane  Smith  ought  to.  have  paid  the  demand  against  her  without  a 
suit :  the  costs  were  therefore  unnecessary,  and  she  is  not  now  entitled  to 
recover  them. 

*11^1       *The  exception  of  the  defendant  to  the  Commissioner's  report 
-I  in  this  respect  is  sustained,  and  the  Chancellor's  decree  reformed. 

Johnson,  J.,  and  Harper,  J.,  concurred. 

Boho,  for  the  appellant. 

Smith  and  Thomson,  contra. 


Matthew  Bryson,  Adm'r  cinn  test.  ann.  of  "William  Bryson,  Sen., 
vs.  George  Nickols,  and  others. 

Testator's  will  directs,  that  after  the  death  of  his  wife,  his  negro  girl  Fan  is  to  be 
sold,  and  her  proceeds  divided  among  his  five  eldest  children;  but  if  his  son  Wil- 
liam choose  he  may  keep  Fan  by  paying  to  each  of  the  said  children  one  hundred 
dollars.  And  directs  the  residue  of  his  estate  to  be  divided  among  his  five  younger 
children:  Fan  had  one  child  after  the  execution  of  the  will  and  before  testator's 
death,  and  five  after  his  death,  and  before  the  death  of  the  tenant  for  life: — Held, 
that  the  increase  of  Fan  before  testator's  death,  fell  into  the  residuum:  that  a 
specific  vested  legacy  in  Fan,  to  take  eifect  on  the  death  of  testator's  wife,  was  not 
given  either  to  William,  or  (on  his  refusal  to  take  her  at  the  price  fixed)  to  the 
elder  children;  but  that  this  was  a  mere  direction  to  divide  the  proceeds  of  Fan's 
sale  among  the  elder  children,  with  a  privilege  to  William  of  taking  her  at  that 
time  at  a  fixed  price;  and  consequently',  that  her  increase  after  testator's  death  did 
not  belong  either  to  William  ( if  he  had  elected  to  take  her)  or  to  the  elder  children, 
but  fell  into  the  residuum,  and  was  divisible  among  the  younger  children.  [*114] 

When  there  is  a  necessity  for  an  executor  or  administrator  to  come  into  a  Court  of 
Equity  to  obtain  its  judgment,  a  counsel  fee  paid  by  him  will  be  refunded  out  of 
the  estate.  [*I21] 

Laurens. — Before  Chancellor  Johnston,  July,  1834. 

William  Bryson,  Sen  ,  died,  leaving  offeree  his  last  will  and  testament, 
which  contains  the  following  clauses:  "It  is  further  my  will  that  after 
the  death  of  my  wife,  that  my  negro  girl  Fan,  if  my  son  William  think  pro- 
per, is  to  be  sold  and  the  proceeds  of  her  to  be  equally  divided  among  my 
sons  Matthew,  James  and  Robert,  and  my  daughters,  Margaret  and 
Agnes :  but  if  William  choose  to  keep  the  girl  Fan,  and  not  sell  her,  it 


*113]  COLUMBIA,    JANUARY,    1835.  93 

is  ray  will  that  be  may,  by  paying  to  each  of  the  above-named  chikli-en 
one  hundred  dollars.  It  is  also  my  will  and  desire  that  all  the  rest  of  my 
negroes  that  are  not  before  named  shall  remain  on  the  plantation  as  long 
as  any  two  of  my  children  shall  remain  single  and  live  together,  and  also, 
all  stock  of  every  kind,  household  and  kitchen  furniture,  and  all  other 
things  necessary  to  keep  up  the  plantation.  And  it  is  further  my  desire, 
and  I  leave  it  discretionary  with  ray  executors,  hereafter  named,  that  as 
any  of  my  children  marry,  that  they  give  them  such  property  and  things 
as  they  think  fit  and  necessary  for  them.  And  it  is  my  will,  that  as  soon 
as  my  children  be  all  married  or  break  up  living  together,  that  the  last- 
named  negroes  and  stock  and  all  the  other  property  left  on  the  plantation, 
shall  be  divided  among  my  son  William  and  my  four  youngest  children  ; 
and  I  do  hereby  vest  my  son  William  with  the  power  to  divide  the  pro- 
perty between  himself  and  his  younger  brothers,  and  two  younger  sisters, 
as  he  may  think  fit  and  necessary;  only  it  is  my  will,  that  if  *any  r;^^^  « 
of  the  negroes  given  and  named  to  any  one  of  my  children,  shall  L 
die  before  this  division  takes  place,  it  is  my  desire  that  the  loss  be  made 
up  to  them  out  of  that  property,  and  I  give  the  same  to  them  and  their 
heirs,  forever."  William  and  the  widow  were  appointed  executor  and 
executrix,  and  qualified. 

After  the  execution  of  the  will  and  before  the  testator's  death,  the 
negro  woman  Fan,  named  in  the  first  clause  of  the  will,  had  one  child 
named  Milly ;  and  after  the  testator's  death,  and  before  the  death  of  his 
widow,  Jane  Bryson,  who  had  a  life  estate  in  her,  Fan  had  five  other 
children,  all  of  whom  remained  in  Mrs.  Bryson's  possession  until  her 
death. 

William  survived  his  mother,  and  after  the  death  of  both,  the  plaintiff 
administered  on  the  testator's  estate  with  the  will  annexed,  and  sold  all 
the  negroes. 

This  bill  was  filed  against  all  the  parties  interested,  requiring  them  to 
present  their  claims  to  the  Court,  and  asking  the  advice  and  direction  of 
the  Court  as  to  the  disposition  of  the  moneys  arising  from  the  sale, 
according  to  a  legal  interpretation  of  the  will. 

On  the  hearing  of  the  cause,  evidence  was  given,  from  which  it  seemed 
that  William  Bryson,  after  the  death  of  his  mother,  refused  to  take  Fan 
at  the  price  fixed  in  the  will. 

Johnston,  Chancellor.  I  came  to  a  decided  opinion  on  this  case,  at 
the  hearing,  and  regret  I  did  not  then  pass  a  decretal  order  on  it,  and 
thus  have  prevented  unnecessary  delay.  The  legislature  seems,  however, 
to  have  required  that  decrees  should  be  accompanied  with  the  reasons  of 
the  Court.  Intending  to  give  my  reasons  with  the  decree,  I  took  time 
for  that  purpose ;  and  have,  by  an  unusual  and  uncontrollable  train  of 
circumstances,  been  prevented  from  doing  so  hitherto,  and  even  now  must 
content  myself  with  but  an  imperfect  exposition  of  those  reasons. 

There  is  no  doubt  but  that  the  price  for  -which  Fan  sold,  must  be 
divided  among  the  five  children  of  the  testator,  Matthew,  James,  Robert, 
Margaret  and  Agnes.     Whether  William,  jun.,  did  or  did  *not  r+iic 
elect  to  purchase  her,  she  has  been  sold  by  the  plaintiff,  in  his  •- 
capacity  of  executor,  and  as  I  understand,  the  sale  is  not  impeached,  nor 


94  SOUTH    CAEOLINA   EQUITY    REPORTS.  [*115 

is  there  any  objection  to  the  payment  of  the  proceeds  to  the  persons  I 
have  named. 

It  is  conceded,  that  the  child  born  of  Fan,  between  the  execution  of 
the  will  and  the  testator's  death,  did  not  pass  with  her,  but  fell  into  the 
residuary  clause  :  of  course  the  proceeds  of  that  one  are  distributable 
among  the  residuary  legatees,  William  Bryson,  Henry  Bryson,  Hunter 
Bryson,  and  the  testator's  two  daughters,  Jane  and  Polly. 

The  contest  is  for  the  proceeds  of  the  children  born  of  Pan  after  the 
testator's  death.  The  five  older  children  claim  them  under  the  clause  of 
the  will  first  recited  in  the  bill  ;  the  younger  children  under  that  last 
recited  ;  and  the  representative  of  William,  jun.,  claims  them  exclusively, 
setting  up  an  election  for  William. 

I  think  the  older  children  are  not  entitled  ;  that  William  is  not  exclu- 
sively entitled,  w^hether  he  elected  or  not,  or  whether  his  representative 
has  or  has  not  a  right  now  to  elect  him  ;  but  that  the  younger  children, 
of  whom  William  is  one,  are  among  them  entitled. 

The  claim  of  the  older  children,  and  the  exclusive  claim  of  William, 
both  stand  upon  this  assumption,  that  there  was  a  good  specific  bequest 
of  Fan,  and  that,  by  force  of  law,  carried  with  her  such  issue  as  she  had 
after  the  testator's  death  :  That  is,  that  at  the  testator's  death.  Fan 
became  a  vested  legacy,  and  a  right  in  her  thus  settling  in  the  legatee, 
she  w^as  thenceforth  the  legatee's  property,  and  her  issue  being  issue  of 
the  legatee's  property,  belonged  also  to  him. 

In  ray  apprehension.  Fan  was  never  bequeathed  at  all.  My  con- 
struction of  the  will  is  simply  this  :  That  the  testator  directed  her  to  be 
sold,  giving  William  a  preference  among  the  purchasers,  and  in  case  he 
bought,  fixed  the  price.  There  was  an  obvious  propriety  in  his  fixing 
the  price  if  William  should  be  the  purchaser,  and  neglecting  to  fix  it  if 
she  should  be  exposed  to  public  sale. — William  was  one  of  the  executors, 
and  if  he  should  not  avail  himself  of  his  preferable  right  to  purchase,  but 
expose  Fan  to  sale,  the  biddings  would  determine  the  price.  But  if  he 
chose  to  purchase  himself,  and  not  expose  the  property  to  sale,  he  being 
one  of  the  executors,  unless  the  testator  fixed  the  price,  one  could  not  be 
jj5l,„-]  fixed.  There  would  be  wanting  the  two  minds  which  the  *law 
-^  requires  to  meet  in  a  contract.  The  testator,  therefore,  chose  to 
offer  proposals  forming  his  side  of  the  contract,  while  yet  alive. 

But,  although  Fan  was  not  bequeathed,  but  a  mere  power  to  sell  her 
was  given,  still,  as  the  will  gives  the  older  children  a  right  to  the  pro- 
ceeds— a  right  which  vested  in  them  at  the  testator's  death,  it  was 
plausibly  contended  that  all  her  after  increase  enured  to  the  same  right. 
This  might  prevail,  if  there  was  nothing  to  show  that  the  sale  was 
to  extend  to  Fan,  and  to  Fan  only — that  the  testator  did  not  intend  to 
include  the  increase  in  the  sale. 

The  sale  was  to  take  place  at  the  widow's  death.  The  testator  fixed  a 
price.  The  subject  of  sale  was  Fan.  Her  value  the  testator  could  fix, 
because  he  knew  her  ;  but  if  he  intended  the  increase  to  go  with  her,  he 
could  not  have  set  a  price,  since  he  could  neither  know  whether  she 
would  have  children,  or  how  many,  or  the  value  of  any  of  them.  Would 
it  have  been  tolerated  that  William  should  take  Fan  and  a  large  family 
of  children  at  five  hundred  dollars  ?  Would  not  every  body  have  ex- 
claimed against  this  as  a  gross  and  corrupt  violation  of  the  testator's 


*116]  COLUMBIA,    JANUARY,    1835.  95 

intention  ?  That  "  a  bargain  is  a  bargain,"  is  the  maxira  of  unfair 
dealers;  but  tlie  law  requires,  "no  bargain  is  good  but  a  fair  one." 
Then,  what  William  was  to  get  under  his  purchase,  is  a  fair  measure  of 
the  rights  of  the  older  children.  They  have  a  right  to  the  proceeds  of 
that  property,  and  that  only,  which  he  had  a  right  to  take  at  five  hun- 
dred dollars.  He  was  entitled  to  take,  at  five  hundred  dollars,  the  same 
property,  neither  more  nor  less,  which,  if  he  did  not  choose  to  purchase 
it,  he  was  bound  to  expose  to  public  sale.  He  was  not  bound  to 
expose  to  public  sale  any  thing  which  he  had  not  a  preferable  right  to 
buy,  and  that  at  five  hundred  dollars.  Would  it  do  for  the  elder 
children  to  say  by  virtue  of  their  interest  in  the  proceeds,  "  if  William 
buys,  he  is  only  to  get  Fan,  because  he  gives  but  five  hundred  dollars, 
but  if  others  purchase,  the  increase  shall  be  included  in  the  sale?" 

My  opinion  then  is,  that  the  younger  children  are  entitled  among  them 
to  the  proceeds  of  Fan's  issue,  born  after  the  testator's  death. 

The  parties  may,  however,  very  well  have  entertained  doubts  on  the 
proper  construction  of  this  will.  Therefore,  1  shall  direct  that  the  costs 
be  paid  rateably  out  of  the  three  funds  arising  from  the  sale  of  Fan,  of 
her  issue  in  the  testator's  life,  and  of  her  issue  after  his  death,  before 
those  funds  are  distributed  agreeably  to  this  opinion;  *which  r:jcii»T 
funds  must  be  accounted  for,  if  required,  before  the  Court.  '- 

Let  the  foregoing  opinion  stand  for  the  decree  of  the  Court. 

An  appeal  was  taken  on  the  part  of  the  testator's  five  elder  children, 
and  a  motion  made  before  this  Court  to  modify  the  decree  of  the 
Chancellor  on  the  grounds  : 

1.  That  Fan  is  bequeathed  to  the  five  elder  children,  and  the  increase 
follows  the  condition  of  the  mother, 

2.  That  the  younger  children  having  no  interest  in  Fan,  can  have  no 
right  to  her  increase  born  after  the  death  of  the  testator. 

3.  That  William  Bryson,  jun.,  having  failed  at  the  proper  time  to 
make  his  election  to  keep  Fan  at  the  price  fixed,  the  right  of  the  elder 
children  became  vested,  and  William's  administrator  cannot  now  set  up 
his  right  to  elect. 

And  the  executor  appeals  on  the  ground  :  That  he  should  have  been 
allowed  for  a  counsel  fee  of  the  estate,  for  having  this  case  brought  before 
the  Court  for  its  adjudication. 

Irhy  and  Caldwell,  for  the  appellants. 

Young,  contra. 

O'Neall,  J.  I  agree  with  the  Chancellor,  that  the  negro  woman  Fan 
has  been  properly  sold,  and  that  her  proceeds  are  divisible  between  the 
testator's  sons,  Matthew,  James  and  Robert,  and  his  daughters  Margaret 
and  Agues  ;  and  that  the  child  born  before  the  testator's  death  is  a  part 
of  his  residuary  estate,  and  is  divisible  under  the  residuary  clause  of  his 
will. 

I  also  agree  with  him  that  the  increase  of  Fan,  born  after  the  testator's 
death,  but  before  the  death  of  the  tenant  for  life,  constitutes  another  part 
of  the  residuary  estate,  and  must  be  divided  between  the  residuary 
legatees. 

It  is  not,  as  I  understand,  pretended  that  William  Bryson  ever  did 


96  SOUTH    CAROLINA    EQUITY   REPORTS.  [*117 

elect  to  take  Fan  at  the  price  or  sura  limited  by  the  will ;  but  if  he  had 
done  so,  he  could  not  have  acquired  any  right  to  the  increase  ;  for,  at  a 
certain  time  (the  death  of  the  widow)  he  is  allowed  to  buy  Fan,  if  he 
chooses,  for  a  given  sum.  Until  he  made  the  purchase  by  taking  the 
slave  and  agreeing  to  pay  the  price,  he  could  have  no  vested  right  in  her 
which  would  entitle  him  to  the  increase. 

*1181  *The  five  elder  children,  it  seems  to  me,  have  proceeded  under  a 
-'  mistaken  notion  that  Fan  was  bequeathed  to  them  at  the  death  of 
the  testator,  and  the  possession  postponed  until  the  death  of  the  widow. 
If  this  had  been  so,  then  their  construction  of  the  will  would  have  been 
right ;  but  she  never  was  bequeathed  to  them  at  all ;  her  proceeds,  when 
sold,  were  directed  to  be  paid  to  them.  But,  if  the  bequest  of  the  pro- 
ceeds of  the  sale  of  the  slave  was  equivalent  to  a  bequest  of  the  slave 
herself,  still  I  think  the  plaintifiTs  would  not  be  entitled  to  more  than  the 
specific  slave. 

The  words  of  the  clause,  under  which  the  five  elder  children  claim, 
are  :  "  It  is  further  my  will  that  after  the  decease  of  my  wife,  that  my 
negro  girl  Fan,  if  my  son  William  thinks  proper,  is  to  he  sold,  and 
the  proceeds  of  her  to  be  equally  divided  among  my  sons  Matthew  and 
James  and  Robert,  and  my  daughters,  Margaret  and  Agnes,  but  if 
William  choose  to  keep  the  girl  Fan,  and  not  sell  her,  it  is  my  will  that 
he  may,  by  paying  to  each  of  the  above-named  children,  one  hundred 
dollars. " 

The  first  rule  in  the  construction  of  a  will  is,  that  the  intention  is  to 
have  effect,  if  it  can  be  clearly  ascertained  from  the  will  and  be  not 
contrary  to  some  known  rule  of  law.  Here  the  intention  is  perfectly  clear, 
that  the  testator  only  intended  that  the  specific  slave  should  be  sold,  and 
the  proceeds  divided.  This  is  manifest  by  his  designating  her  as  the 
negro  girl  Fan,  and  by  the  price  which  he  fixed  on  her  alone. 

But,  to  entitle  the  elder  children  to  the  increase  of  Fan,  the  legacy  in 
their  favor  ought  to  have  given  them  a  vested  right  in  her  from  the  death 
of  the  testator,  to  be  enjoyed  at  the  death  of  the  tenant  for  life  The 
legacy  is,  however,  purely  future  and  contingent ;  it  is  a  mere  direction 
by  the  will  that  she  should,  after  the  death  of  the  testator's  widow,  be 
sold ;  but  this  was  not  even  positive  and  peremptory — it  was  to  be  so 
"  if  my  son  William  think  proper  :"  if  he  thought  proper  he  might  take 
her  himself,  by  paying  to  the  elder  children  one  hundred  dollars  each. 
These  provisions  made  the  legacy  of  Fan  (if  it  can  be  so  considered) 
purely  contingent :  no  one  under  the  will  had  a  fixed  right  as  a  legatee 
to  her.  She  might  be  sold  by  William,  or  he  might  keep  her  ;  and  until 
the  death  of  the  widow,  and  he  had  decided  which  course  he  would 
pursue,  the  will  was  wholly  provisional,  "  The  distinction  between 
vested  and  contingent  legacies  is,  that  a  vested  legacy,  immediately  on 
*1191  *^®  death  of  the  testator,  attaches  as  a  debt  upon  *his  real  or 
-^  personal  estate ;  whereas  a  contingent  legacy  does  not  attach 
upon  either,  until  the  contingency  happens.  In  the  first  case,  the  legacy 
is  debitum  in  prcesenti,  solvendum  in  futuro  ;  but  where  the  legacy  is 
merely  contingent,  not  constat,  whether  under  the  will  the  fund  will  ever 
be  charged  with  it."  2  Bridg.  Dig.  Tit.  Leg.  sec.  ix.  par.  320.  This 
rule  applies  more  particularly  to  pecuniary  legacies,  but  still  its  analogy 
■will  reach  to  specific  legacies.     For  the  question  in  both  is,  whether  a 


k 


*119]  COLUMBIA,    JANUARY,    1835.  97 

present  intei'est  passes  ;  if  it  does  not,  the  legatee  cannot  have  any  right 
until  the  contingency  happens.  In  this  case,  so  far  as  the  older  children 
are  concerned,  the  legacy  before  us  is  pecuniary  and  contingent :  it  is 
pecuniar)^,  because  it  entitles  each  one  to  a  share  of  the  proceeds  of  the 
slave,  in  money ;  it  is  conthigent,  because  its  eventual  payment  depended 
upon  the  life  of  a  slave,  as  the  thing,  whereby  the  fund  was  to  be  created. 
As  was  said  by  that  eminent  lawyer  and  good  citizen,  Mr.  Grimke, 
(whose  early  death  South  Carolina  will  long  deplore,)  in  h'is  argument  of 
Taveau  v.  Ball,  1  M'C.  Ch.  Rep.  13  :  "If  the  time  of  division  be  not 
the  substance  of  the  gift,  it  is  only  matter  of  regulation."  That  applies 
to  cases  where  there  has  been  a  gift  to  several,  and  a  future  time  ap- 
pointed for  division — then,  if  the  time  of  divison  be  not  the  substance  of 
the  gift,  it  only  operates  to  regulate  the  division  to  be  made.  But  in 
this  case,  the  rights  of  the  elder  children  are  not  to  the  thing  itself,  but 
that  the  proceeds  of  the  slave,  when  sold,  should  be  divided  among  them. 
The  division  is,  hence,  of  the  substance  of  the  gift ;  and  they  can  take  no 
interest,  until  by  law,  or  rather  by  the  will,  that  division  is  to  be  made. 
The  rule,  as  to  the  vesting  of  legacies,  is  very  well  stated  in  Bac.  Ab.  tit. 
Leg.  E.  2  :  "  If  a  legacy  be  devised  to  one  to  be  paid  or  payable  at 
twenty-one,  or  any  other  age,"  it  is  vested — the  time  being  annexed  to 
the  payment,  and  not  to  the  legacy  itself;  "but  if  a  legacy  be  devised 
to  one  at  twenty-one,  or  when  he  shall  attain  the  age  of  twenty-one,"  the 
legacy  would  not  vest  until  the  legatee  was  of  the  age  prescribed.  The 
application  of  this  rule  to  the  case  before  us,  shows  that  the  legatees  now 
claiming  had  no  vested  right  until  the  death  of  the  widow.  For  it  is  a 
bequest  to  them,  "after  the  decease  of  my  wife."  This  is  a  distinct 
clause  from  that  in  which  he  had  given  her  a  life  estate  ;  and  her  death 
is  fixed  upon  as  the  commencement  of  their  interest :  and  the  clauses  do 
not  authorize  the  construction  that  the  estate  for  life  and  the  remainder 
constitute  together  one  gift ;  each  is  separate  and  *distinct,  and  r*i  c)q 
the  testator,  after  his  widow's  death,  is  to  be  regarded  as  then  ^ 
making  a  disposition  of  the  slave. 

The  case  of  Swinton  v.  Legare,  2  M'C.  C.  Rep.  440,  is  a  very  clear 
authority  iu  favor  of  the  view  that  the  elder  children  did  not  take  a  pre- 
sent interest.  There  the  testator  devised  and  bequeathed  to  his  daughter 
Susannah  Swinton,  ^'during  life,  and  after  her  death  to  he  equally 
divided  among  the  survivors  of  her  children,  to  each  of  them  share  and 
share  alike,  as  they  shall  attain  the  age  of  tioenty-one  or  marriage.''^ 
The  question  was  whether  all  of  her  children  living  at  the  testator's  death, 
or  only  those  who  were  alive  at  her  death,  would  be  entitled  to  take.  It 
was  held,  that  the  legacy  in  remainder  did  not  vest  at  the  testator's  death 
in  all  Susannah  Swinton's  children  ;  but,  at  her  death,  it  vested  in  those 
then  alive.  That  case  turned,  it  is  true,  upon  the  construction  of  the 
word  "survivors,"  but  still  the  case  is  an  authority  for  ray  purposes  here. 
For,  as  Judge  Nott  in  the  conclusion  of  the  case  said,  "being  given  to 
her  during  life,  and  after  her  death  to  be  divided  among  her  surviving 
children,  it  must  necessarily  relate  only  to  those  who  were  living  at  the 
time  of  her  death."  So  here,  the  bequest  being  after  the  death  of  the 
testator's  widow,  that  the  slave  Fan  should  be  sold,  and  her  proceeds  be 
divided  among  certain  persons,  it  follows  that  their  rights  arise  at  the 
death  of  the  testator's  widow,  and  not  before. 


98  SOUTH   CAROLINA   EQUITY   REPORTS.  [*120 

The  case  of  Taveau  v.  Ball,  1  M'C.  C.  Rep.  7,  if  it  has  any  application 
to  the  case,  militates  against  the  purposes  for  which  it  was  cited.  In  it 
the  Chancellor  says,  "the  time  of  the  division  is  not  at  all  connected  with 
the  gift.  The  preceding  clause  had  given  these  estates,  absolutely  to  the 
sons,  and  gave  a  plain  vested  interest.^''  In  the  case  before  us,  the  clause 
of  the  will  does  not  give  Fan  to  the  elder  children  absolutely,  nor  does 
it  give  them  any  plain  and  vested  interest  in  her.  The  time  of  division 
here  is  directly  connected  with  the  gift ;  indeed,  it  depends  upon  the  sale 
for  division.  If  it  had  been  impossible  to  make  a  sale,  by  the  death  or 
worthlessness  of  the  slave,  the  gift  to  the  elder  children  w^ould  have 
failed. 

The  case  of  Brailsford  and  wafe  v.  Hey  ward,  2  Eq.  Kep.  18,  turned 
altogether  upon  the  intention  of  the  testator,  and  has  not  the  slightest 
analogy  to  the  case  before  us. 

So  far,  therefore,  I  am  perfectly  satisfied  with  the  Chancellor's  decree ; 

^,  g,  -j  and  I  have  added  these  remarks,  to  those  contained  in  his  ^decree, 

-^  more  to  satisfy  the  parties  than  from  any  actual  necessity  requiring 

it  to  be  done,  in  order  to  a  correct  understanding  or  decision  of  the 

cause. 

But  I  think  the  Chancellor  ought  to  have  directed  the  counsel  fee  paid 
by  the  plaintiff  to  be  refunded  to  him,  in  the  same  manner  in  which  he 
directed  the  costs  to  be  paid.  There  seems  to  have  been  a  necessity  for 
the  plaintiff  to  come  into  the  Court  of  Equity,  to  obtain  its  judgment,  as 
to  the  construction  of  the  testator's  will.  The  case  of  Warden  v.  Burts, 
2  M'C.  Ch.  Rep.  16,  allows  the  counsel  fee  as  well  as  the  costs,  where 
they  have  not  been  the  result  of  the  executor's  or  administrator's  mis- 
conduct. 

The  Chancellor's  decree  is  in  this  respect  modified,  and  in  all  others 
affirmed. 

Johnson,  J.,  and  Harper,  J.,  concurred. 


John  P.  Sarter  and  Wife,  and  others,  vp.  Jesse  Gordon,  Adm'r. 

Specific  performance  of  an  agreement  for  the  sale  of  slaves  decreed,  [*121] 

If  one  undertake  for  minors  his  act  will  bind  him,  although  it  may  not  them,  and  the 
contract  will  be  binding  on  the  other  party,  although  voidable  at  the  option  of 
the  minors.  [*12.5] 

Inadequacy  of  price,  unaccompanied  with  circumstances  of  fraud,  not  sufficient  to 
prevent  enforcement  of  a  contract.  [*126] 

Time,  when  not  of  the  essence  of  the  contract,  no  excuse  for  nonperformance  unless 
it  amount  to  an  abandonment.  [*12fa] 

It  is  a  genei-al  rule  that  specific  performance  will  not  be  decreed  of  contracts  for 
personal  chattels.  Exceptions  where  property  is  of  a  peculiar  character:  Domestic 
servants,  or  those  brought  up  in  a  family,  come  within  the  reason  of  the  excep- 
tions. [*126] 

General  principles  on  which  specific  performance  of  contracts  is  decreed,  and  the 
cases  on  the  subject  considered.  [*133] 

The  general  principle  is,  that  any  fair  and  reasonable  contract  will  be  enfoi'ced 
specifically,  unless  it  appears  that  full  justice  may  be  dane  by  a  compensation  in 
damages.  In  some  cases  of  contracts  for  slaves,  damages  would  not  be  sufficient 
compensation.  [--135] 


*121]  COLUMBIA,    JANUARY,    1835.  99 

According  to  the  principle  of  all  the  cases,  a  bill  may  be  maintained  for  slaves 
brought  up  in  a  family:  and  it  may  be  laid  down  as  a  general  rule  that  a  bill  will 
lie  fur  the  specific  delivery  of  slaves,  as  for  the  specific  performance  of  a  contract 
for  the  sale  of  land.  [*13G] 

There  may  be  exceptions  to  the  riile — as  if  the  purchaser  contracted  for  the  slaves 
as  merchandise,  intending  to  sell  again;  in  such  case,  justice  would  be  done  by 
damages.     But  this  is  not  generally  so,  or  to  be  presumed.  [*137] 

If  it  appear  on  the  face  of  a  bill,  that  it  was  prematurely  filed,  and  advantage  be 
taken  by  demurrer,  it  will  be  fatal;  but  if  tliere  be  no  demurrer,  and  the  case  be 
not  brought  to  a  hearing  till  after  the  time  fixed  for  the  performance  of  the  con- 
tract, the  Court  will  not  then  dismiss  the  bill,  but  give  leave  to  amend  on  terms. 
A  bill  may  propei'ly  be  filed  to  prevent  the  sale  of  slaves  before  the  time  fixed  in 
the  contract  of  sale  for  their  delivery;  and  then  it  is  proper,  to  prevent  multiplicity 
of  suits,  that  all  matters  in  controversy  be  brought  forward.  [*1C7] 

Any  one  offering  to  perform  a  contract  on  behalf  of  infants  is  their  agent,  and  his 
offer  will  be  sufficient  to  compel  performance  by  the  other  party.  [*13S] 

In  a  contract  with  the  father  for  the  benefit  of  his  infant  children,  there  is  not  such 
want  of  mutuality  as  will  exonerate  the  other  party  from  performance.  [*139] 

Specific  performance  of  contracts  for  leases  has,  in  some  cases,  been  refused  on  the 
ground  of  the  insolvency  of  the  tenant;  different  on  a  contract  to  purchase — for 
there  the  Court  will  not  decree  title  to  be  made  until  the  money  is  paid.  [*140] 

The  contract  sought  to  be  enforced  being  certain,  it  will  not  be  affected  by  any 
uncertainty  in  another  separate  contract  for  a  different  matter,  contained  in  the 
same  instrument.  [*140] 

Union — 

This  bill  was  filed  ITth  jS'overaber,  1832,  by  John  P.  Sarter,  and  wife 
Patsey,  late  Patsey  Sims,  daughter  of  Reuben  Sims,  the  said  Reuben 
Sims  and  his  infant  children,  Ann,  Mary,  John,  James,  "William  and 
Reuben,  by  their  next  friend,  Nathan  Sims,  against  the  defendant,  as 
administrator  with  the  will  annexed  of  Edward  Stevens.  It  states  that 
the  said  Edward  Stevens,  in  his  lifetime,  and  Reuben  Sims,  entered  into 
the  following  agreement,  to  wit : — 

State  of  South  Carolina,") 
Union  District.         j 

Agreement  made  and  entered  into  this  11th  day  of  January,  1832, 
between  Edward  Stevens  of  the  State  and  district  aforesaid,  of  the  one 
part,  and  Reuben  Sims,  of  the  State  and  district  aforesaid,  of  the  other 
part,  as  follows  : — The  said  Edward  Stevens  doth  hereby  agree  with  said 
Reuben  Sims,  to  sell  to  the  children  or  their  agent,  of  the  said  Reuben 
Sims,  all  that  family  of  negroes  *and  their  increase,  known  by  the  r*222 
name  of  Abrara  and  his  family,  that  I  bought  at  sheriff's  sale  at  •- 
Union  Court  House  on  sale-day,  in  September,  in  the  year  1827,  for  the 
sum  of  eighteen  hundred  dollars  and  interest  from  the  time  that  he  bought 
them  ;  and  that  he,  the  said  Edward  Stevens,  in  January  next,  on  receiv- 
ing from  the  children,  or  their  agent,  of  said  Reuben  Sims,  the  said  sum 
of  money,  then  he  is  to  execute  a  bill  of  sale  of  the  said  negroes  to  the 
said  children,  or  their  agent,  of  said  Reuben  Sims,  free  from  all  incum- 
brances, which  bill  of  sale  shall  contain  a  general  warranty,  and  the  usual 
full  covenant :  and  the  said  R.  Sims  agrees  with  the  said  Edward  Stevens, 
that  the  children,  or  their  agent,  of  the  said  Reuben  Sims,  shall  and  will, 
in  January  next,  and  on  the  execution  of  such  bill  of  sale,  pay  unto  the 
said  Edward  Stevens  the  sum  of  eighteen  hundred  dollars,  and  interest 
aforesaid.     And  it  is  further  agreed  between  the  parties  aforesaid,  that 


100  SOUTH    CAEOLTNA    EQUITY    REPORTS.  [*122 

the  said  Edward  Stevens  do  pay  hire  for  the  use  of  the  aforesaid  negroes 
from  the  first  January,  1828,  until  January  next,  when,  and  upon  the 
delivery  and  bill  of  sale,  the  possession  is  to  be  delivered  to  the  children 
or  their  agent,  of  the  said  Reuben  Sims  :  it  is  agreed  between  the  parties 
that  the  children,  or  their  agent,  of  the  said  Reuben  Sims,  do  pay  the  said 
E.  Stevens  for  his  trouble  and  expense  for  attending  to  a  law  suit,  what 
any  two  or  three  good  disinterested  men  shall  say  it  is  worth  :  and  it  is 
understood  that  the  stipulations  aforesaid  are  to  apply  to,  and  to  bind  the 
heirs,  executors  and  administrators  of  the  respective  parties  ;  and  in  case 
of  failure,  the  parties  bind  themselves,  each  unto  the  other,  in  the  sum  of 
six  thousand  dollars,  which  they  hereby  consent  to  fix  and  liquidate  as 
the  amount  of  damages  to  be  paid  by  the  failing  party,  for  his  non-per- 
formance, whereof  the  parties  have  hereunto  set  their  hands  and  seals, 
the  day  and  year  aforesaid. 

R.  Sims,  [l.  s.] 

Edward  Stevens,    [l.  s.] 

That  in  pursuance  of  this  agreement,  Stevens  received  $400,  and  has 
had  the  use  of  the  negroes,  for  which  he  was  to  pay  hire,  both  which  must 
be  deducted  from  the  price  agreed  to  be  paid  for  the  negroes.  That  the 
time  fixed  for  the  performance  of  the  agreement  has  not  yet  arrived  ;  and 
that  the  defendant  as  administrator,  has  recently  advertised  for  sale  all 
tlie  personal  property  of  Stevens  not  specifically  bequeathed,  including 
^,nr,-|  these  negroes,  and  *is  about  to  sell  the  same  in  December  (then) 
-^  next.  That  the  negroes  are  valuable,  and  Stevens'  estate  so  em- 
barrassed, that  after  the  payment  of  his  debts  there  will  not  remain  suffi- 
cient to  discharge  the  $6000  which  has  been  fixed  in  the  agreement  as 
liquidated  damages  for  its  non-performance ;  and  if  the  defendant  should 
be  permitted  to  sell  the  negroes,  they  may  be  scattered  abroad,  or  perhaps 
removed  out  of  the  jurisdiction  of  the  Court,  whereby  a  specific  execution 
of  the  contract,  which  was  the  main  object  of  the  paa'ties,  would  be  pre- 
vented, to  the  irreparable  injury  of  the  plaintiffs  :  and  under  these  circum- 
stances they  have  no  adequate  remedy  at  law.  The  bill  prays  for  an 
injunction  to  restrain  the  defendant  from  selling — that  the  defendant 
account  for  the  hire,  and  give  bond  and  security  for  the  delivery  of  the 
negroes  at  the  time  specified  in  the  agreement, — and  that  the  said  agree- 
ment may  be  specifically  performed. 

On  filing  the  bill,  a  motion  was  made  before  the  Commissioner  for  an 
injunction,  which  was  refused. 

On  the  8th  June,  1833,  the  defendant  put  in  a  general  demurrer  to  the 
bill,  which  Chancellor  Johnston  overruled,  and  at  the  same  time  granted 
an  injunction  and  leave  to  amend  the  bill.  The  amendment  to  the  bill 
alleges,  that  in  January  1833,  the  plaintiffs,  by  their  friend  and  agent, 
Nathan  Sims,  offered  to  perform  the  agreement  on  their  part,  and 
tendered  to  the  defendant  the  sum  stipulated  to  be  paid,  w-hich  he  refused 
to  accept,  and  refused  to  perform  the  agreement  on  the  part  of  said 
Stevens  to  be  performed. 

On  the  5th  August,  1833,  the  defendant  filed  his  answer,  in  which  he 
requires  proof  of  the  execution  of  the  agreement  set  out  in  the  bill,  and 
of  the  payment  of  four  hundred  dollars  in  part  performance.  He  answers, 
that  not  Jaelieving  that  the  plaintiffs  seriously  intended  to  prosecute  their 


*123]  COLUMBIA,    JANUARY,    1835.  101 

claim,  he  liad  advertised  the  negroes  for  sale,  but  has  since  declined  sell- 
ing until  the  matter  is  adjudicated;  nor  has  he  any  intention  of  removino- 
them  from  the  State.  He  cannot  say  what  the  main  object  of  the  agree- 
ment was,  but  the  estate  of  Stevens  will  be  amply  sufficient  to  pay  any 
demand  the  plaintiffs  could  recover  on  account  of  the  said  agreement. 
That  the  time  for  the  performance  had  not  arrived  at  the  filing  of  the  bill, 
and  submits  to  the  Court,  that  if  the  plaintiffs  had  performed  their  part 
of  the  agreement,  they  had  a  plain  and  adequate  remedy  at  law.  That 
if  the  plaintiffs  could,  at  the  time  of  filing  their  bill,  have  come  into  this 
Court  for  relief,  it  could  only  have  been  for  an  ^injunction  until  r^,-,c), 
the  time  of  performance ;  and  that  part  of  the  case  has  failed  by  '- 
the  rejection  of  the  application  by  the  Commissioner:  and  as  the  case  now 
stands,  [before  the  amended  bill,]  it  is  a  bill  filed  in  November,  1832,  to 
euforce  an  agreement,  which,  by  its  terms,  is  not  to  be  performed  until 
the  January  following,  without  alleging  that  the  plaintiffs  have  performed 
or  offered  to  perform  the  agreement  on  their  part— in  effect,  asking  the 
Court  to  enforce  an  agreement  against  the  defendant  before  the  time  spe- 
cified in  it,  and  at  the  same  time  to  absolve  the  plaintiffs  from  the  per- 
formance on  their  part.  And  he  pleads  in  bar  the  want  of  such  an 
allegation  in  the  bill,  and  to  the  jurisdiction  of  the  Court. 

To  the  amended  bill  the  defendant  answered,  that  neither  the  said 
Reuben  Sims,  nor  his  children,  did,  at  the  time  the  agreement  was  to  be 
performed,  offer  to  perform  their  part.  That  he  did  not  know  there  was 
any  agent  for  the  children,  or  who  he  was;  neither  does  he  believe  that 
there  was  any  such  person  legally  authorized  to  act  for  them,  and  requires 
proof  thereof. 

The  cause  was  heard  before  Chancellor  De  Saussure,  June,  1834. 
On  the  trial  the  agreement  set  out  in  the  bill  was  produced  and  the  sig- 
nature of  Stevens  proved.  It  was  also  proved  that,  in  January  1833, 
Nathan  Sims,  the  uncle  of  Reuben  Sims'  children,  and  their  next  friend 
in  this  case,  with  bank  bills  in  hand  sufficient  for  this  purpose,  offered  to 
pay  Gordon  the  money  due,  according  to  the  agreement,  and  stated  that 
if  objections  were  made  to  the  bills  he  would  procure  specie;  to  which 
Gordon  replied  that  he  made  no  objection  to  the  bills,  but  that  he  did 
not  know  the  amount  which  would  be  due  according  to  the  agreement, 
and  if  he  did,  he  would  not  accept  the  money.  The  estate  of  Stevens,  it 
appeared,  was  much  embarrassed,  and  from  the  statement  of  the  adminis- 
trator, (which  was  admitted  by  consent,)  there  will  remain,  after  the  pay- 
ment of  the  debts,  (exclusive  of  these  negroes,  or  the  sum  of  $1800  in  the 
agreement,)  about  $3000  for  distribution.  Reuben  Sims  was  insolvent 
iu  1832,  and  is  so  now.  It  was  further  proved  that  the  negroes  in 
question  came  by  Mrs.  Sims  in  marriage,  and  some  of  them  had  been 
raised  with  her.  They  were  purchased  by  Stevens,  at  sheriff's  sale,  as 
the  property  of  Reuben  Sims,  and  after  the  sale  he  said  that  if  the  family 
of  Sims,  or  their  friends  for  them,  would  pay  him  what  he  gave,  and  some 
compensation  for  his  trouble,  they  should  have  the  negroes.  The  negroes 
were  proved  to  be  worth  about  $4000,  and  their  hire  from  January,  1828, 
$215  per  annum. 

*  Chancellor    De  Saussure.      The    principal   questions    which  r:xi25 
arise  in  this  case,  are: — First.  Whether  this  is  such  an  agreement  ^ 
as  is  binding  on  the  representative  of  the  estate  of  Edward  Stevens 
YoL.   1.— 30 


102  SOUTH    CAROLINA   EQUITY    REPORTS.  [*125 

And  whether  this  is  a  case  in  which  the  Conrt  ought  to  give  the  relief  prayed 
for,  by  decreeing  specific  performance  of  the  agreement  ?     At  the  hearing 
of  the  case,  it  was  urged,  though  not  very  strongly,  that  there  was  no 
jurisdiction  in  the  Court ;  but  in  answer,  it  was  insisted  that  Chancellor 
Johnston   had  already  decided  that  question,  which  was  not  appealed 
from,  and  that  would  be  sufficient.     But  in  truth,  the  plaintiff  would  have 
substantially  the  benefit  of  that  plea,  if  the  Court  should  be  of  opinion 
that  this  is  a  case  in  which  it  ought  not  to  decree  a  specific  performance. 
On  examining  the  first  question  above  stated,  it  appears  to  me,  after 
ascertaining  the  facts  proved  in  the  cause,  that  the  agreement  is  binding 
on  the  representative  of  Edward  Stevens.     The  objections  made  were, 
that  there  was  no  person  with  whom  he  could  legally  contract,  and  there- 
fore the  contract  for  the  slaves  was  void ;  and  also,  that  the  consideration 
was  too  low  and  inadequate.     It  is  true  that  Reuben  Sims,  with  whom 
Mr.  Stevens  contracted  to  sell  and  deliver  the  slaves  in  question,  did  not 
contract  on  his  own  behalf,  but  on  behalf  of  the  children,  or  in  other 
words,  was  constituted  a  trustee  on  their  behalf.     Now,  it  is  the  doctrine 
of  law  as  well  as  of  common  sense,  that  if  a  stranger  undertake  to  con- 
tract for   minors,  his  act,  though  it  may  not  bind  them,  will  bind  him ; 
for,  in  the  very  instrument  of  agreement  he  binds  himself  to  pay  the 
stipulated  sum  of  $1800,  and. interest  for  the  slaves,  with  a  heavy  penalty 
if  the  terms  are  not  complied  with:  besides,  it  is  not  true  that  all  con- 
tracts should  be  so  absolutely  mutual  that  mutual  remedies  should  flow 
from  them.     One  exception  is,  that  if  an  adult  male  make  a  promise  of 
marriage  with  a  minor,  and  fail  to  perform  it,  he  would  be  liable  for  dam- 
ages, though  she  would  not  be  liable.   Others  would  be  made  under  peculiar 
circumstances.     When  an  adult  deals  with  a  minor,  knowing  his  minority, 
and  in  contracts  for  propei'ty  with  a  minor,  the  deeds  are  not  void,  but 
voidable  only  at  the  option  of  the  minor  and  if  they  be  for  his  benefit, 
will  be  sustained.     I  think,  therefore,  that  Mr.  Edward  Stevens  and  his 
representatives  were  bound  by  this   contract.     As  to  the  inadequacy  of 
the  consideration,  it  is  true  that  the  contract  was  for  $1800,  and  the 
slaves  were  proved  to  be  worth  $4000.     If  this  had  been  an  ordinary  case 
*1  £)/«-]  of  persons  of  mature  age  dealing  *with  each  other  at  arm's  length, 
-^  this  disproportion  of  price  to  value  would  not  have  been  of  itself 
a  sufficient  ground  to  put  aside  the  contract  without  some  circumstance  of 
fraud,  imposition,  or  utter  ignorance.     But  none  of  these  things  have  oc- 
curred; there  is  a  real  and  valuable  consideration,  and  no  allegation  of 
fraud  or  imposition.     Mr.  Stevens  knew  he  had  obtained  a  great  bargain 
at  the  sheriffs  sale,  at  the  expense  of  a  large  family,  and  seems  to  have 
been  induced  by  kind  feelings  to  let  the  children  of  the  family  have  the 
slaves  at  the  same  price  he  had  given,  and  who  were  to  pay  him  in  this 
act  of  beneficence.     The  objection  by  his  administrator  seems  to  me  to  be 
unfounded.     Another  objection  was  made,  that  the  terms  were  not  com- 
plied with,  and  the  money  not  paid  at  the  stipulated  time.     In  transac- 
tions of  this  kind  it  is  not  understood  that  time  is  of  the  essence  of  the 
contract.     To  be  sure,  great  and  long-continued  non-performance  will  in 
some  instances,  in  which  circumstances  are  greatly  changed,  be  construed 
into  an  abandonment  of  the  bargain.     This,  however,  is  rare,  and  takes 
place  only  when  the  conduct  of  the  parties  indicates  the  intention  to 
abandon  the  contract,  or  the  delays  have  produced  great  injury  to  the  one 


*126]  COLUMBIA,    JANUARY,    1835.  103 

seeking:  to  get  riJ  of  tlie  contract.  In  the  case  we  arc  considering,  tliere 
is  no  evidence  of  any  design  on  the  part  of  the  minors,  or  their  friend  and 
trustee,  Mr.  Sims,  to  relinquish  the  contract — on  tlie  contrary,  an  effort 
was  made  to  complete  the  i)aymcnt  to  the  administration  of  Mr.  Stevens, 
which,  if  it  did  not  absolutely  amount  to  a  formal  tender  of  the  purchase 
money  according  to  strict  rule,  was  so  substantially;  and  utterly  takes 
away  all  pretence  of  the  contract  being  abandoned,  or  so  grossly  neglected 
for  an  immoderate  length  of  time,  as  ought  to  preclude  the  enforcement 
of  it  now  by  the  administrator.     The  offer  to  pay  the  money  was  refused. 

The  principal  question  in  the  cause,  and  one  involving  real  difficulty, 
is  whether  it  is  legal  and  proper  to  decree  the  specific  performance  of  an 
agreement  for  the  sale  of  slaves.  It  is  not  to  be  questioned  that  the 
general  doctrine  of  the  Court  of  Equity  is,  that  specific  performance  will 
not  generally  be  decreed  of  contracts  of  personal  goods  and  chattels, 
though  it  will  as  to  real  estate.  The  reason  is,  that  the  former  are  of  a 
perishable  and  transient  nature,  and  not  always  capable  of  being  decreed 
in  specie  as  land  may ;  and  also,  because  compensation  in  damages  may, 
and  generally  will  be,  an  adequate  and  proper  remedy.  There  aie,  how- 
ever, exceptions  to  the  rule,  when  the  personal  property  is  of  a  peculiar 
*character,  and  where  a  peculiar  value  is  placed  upon  particular  r^itio'T 
articles,  such  as  pictures,  vases,  arms,  amorial-bearings — ft'om  •- 
feelings  of  affection,  family  attachment,  or  other  considerations  of  that 
kind.  It  has  long  been  a  question,  how  far  the  rule  or  the  exception 
should  be  applicable  to  the  cases  of  contracts  for  slaves.  All  the  reasons 
which  apply  to  the  exception,  apply  to  the  case  of  slaves;  not,  perhaps, 
broadly  and  unqualifiedly,  but  to  domestic  servants  brought  up  in  a 
family,  and  who  became,  as  in  this  case,  the  subjects  of  contract  with  the 
family  who  raised  them.  In  many  of  the  contracts  for  slaves,  compensa- 
tion in  damages  would  not  be  a  proper  or  adequate  compensation.  In 
most  cases,  slaves  are  purchased  with  a  view  to  the  settlement  and  culti- 
vation of  land ;  and  if  a  disappointment  in  the  purchase  of  the  slaves 
takes  place,  the  land  may  be  uncultivated  and  a  burden.  The  Courts 
have  been  approaching  to  this  view  of  the  subject,  and  I  understand  that 
the  Court  of  Appeals  has  leaned  favorably  to  it.  It  is  time  that  the 
doctrine  should  be  settled,  and  I  shall  therefore  decree,  according  to  my 
judgment,  in  favor  of  the  specific  execution  of  this  contract,  in  order  to 
have  the  question  distinctly  carried  up  to  the  Court  of  Appeals  for  its 
final  judgment. 

Other  questions  were  made  at  the  hearing.  By  the  contract  for  the 
negroes  between  Stevens  and  Sims,  on  behalf  of  the  minor  children,  it 
was  agreed  by  the  said  Stevens,  to  sell  to  the  children,  or  their  agent,  all 
that  family  of  negroes  (now  in  question)  for  the  sum  of  $1800,  and 
interest  from  the  time  he  bought  them  at  sheriff's  sale,  (September,  I82T,) 
and  that  he,  Edward  Stevens,  would  in  January  next,  after  date  of  the 
agreement,  (January  11,  1832,)  on  receiving  from  the  children,  or  their 
agent,  Reuben  Sims,  the  said  sum  of  money,  ($1800,)  would  execute  a 
bill  of  sale  of  the  said  slaves,  to  the  said  children,  or  their  agent,  of  the 
said  Reuben  Sims,  free  from  incumbrances,  and  with  a  clause  of  war- 
ranty, whereupon  the  said  sum  of  $1800  was  to  be  paid,  with  interest,  to 
the  said  Edward  Stevens.  And  it  was  further  agreed,  that  the  said 
Edward  Stevens  should  pay  hire  for  the  use  of  the  said  slaves,  from  the 


104  SOUTH    CAROLINA   EQUITY   REPORTS.  [*127 

first  of  January,  1828,  until  the  first  of  January  then  next  ensuing, 
(January,  1833,)  when  the  possession  of  the  slaves  was  to  be  delivered 
to  the  said  children,  or  their  agent.  It  was  also  agreed,  that  the  chil- 
dren, or  their  agent,  should  pay  to  Edward  Stevens,  for  his  trouble  and 
expense  for  attending  to  a  law  suit,  what  two  or  three  good  disinterested 
^,j^o-]  men  shall  say  it  is  worth.  The  parties  also  *bound  themselves, 
J  and  their  heirs,  executors  and  administrators,  respectively,  in  the 
sum  of  six  thousand  dollars,  as  the  amount  of  damages  for  the  faithful 
performance  of  the  stipulations  of  the  agreement.  These  stipulations 
are  sufficiently  distinct  and  precise.  Yet  it  was  argued  for  defendant, 
that  if  interest  should  be  allowed  on  the  sum  of  $1800,  paid  by  Mr. 
Stevens,  and  hire  allowed  for  the  work  of  the  slaves  during  the  time  they 
were  held  by  him,  that  it  would  be  greatly  to  the  disadvantage  of  the 
estate  of  Stevens,  as  the  usual  rate  of  hire  would  greatly  exceed  the 
interest.  If  this  should  operate  hardly  on  Mr.  Stevens'  estate,  it  would 
be  the  effect  of  his  own  express  agreement.  Such  are  the  terms  of  his 
own  agreement.  It  might  be  inexplicable  why  he  entered  into  such 
stipulations,  unless  we  understand  what  I  think  all  the  circumstances 
warrant,  and  even  require  us  to  believe,  which  is,  that  Mr.  Stevens, 
throughout  the  whole  transaction,  acted  as  the  friend  of  the  children,  and 
though  a  bona  fide  purchaser  of  the  slaves  at  sheriff's  sale  at  a  low  price, 
he  never  meant  to  make  a  profit  on  the  purchase,  but  to  let  them  have 
all  the  profits  of  the  hire  and  labor,  provided  he  was  reimbursed  his 
advance  of  $1800,  with  interest.  This,  I  think,  the  true  clue  to  the 
whole  transaction,  in  which  there  was  no  impropriety  towards  any,  and 
great  kindness  and  good-will  to  these  children. 

It  is  therefore  ordered  and  decreed,  that  the  plaintiffs  do  pay  over  to 
the  defendant,  the  administrator  of  Edward  Stevens,  the  sum  of  $1800, 
with  interest,  according  to  the  agreement ;  and  that  the  said  adminis- 
trator do  convey  the  said  slaves  in  cpiestion,  and  their  increase,  to  the 
said  children,  mentioned  in  the  pleadings,  or  to  their  agent,  and  account 
or  their  hire  and  labor  according  to  the  terras  of  the  agreement.  But 
under  the  circumstances,  the  rate  of  hire  should  be  fixed  at  a  very 
moderate  rate.  And  that  the  Commissioner  to  whom  the  case  is  referred 
to  examine  and  make  up  the  account  for  hire,  do  also  examine  and  report 
what  compensation  ought  to  be  allowed  to  Mr.  Stevens'  estate  for  his 
services  in  the  law  suit  mentioned  in  the  agreement,  of  which  there  is  no 
proof  before  the  Court.  Costs,  in  such  a  case  as  this,  to  be  paid  out  of 
the  property  in  question. 

The  defendant  appealed  on  the  following  grounds  : 

1.  That  the  bill  was  prematurely  filed  :  the  injunction  part  having 
failed,  there  was  no  ground  on  which  it  could  be  restrained,  and  the  de- 
murrer should  have  been  sustained. 

2.  The  amendment  to  the  bill  ought  not  to  have  been  allowed  : 
it  Avas  too  late,  but  if  allowed,  it  should  have  been  on  terms. 

3.  The  agreement  was  not  proved  as  required  by  the  answer,  there 
being  no  proof  that  Reuben  Sims  executed  it. 

4.  There  w^as  no  proof  that  Reuben  Sims,  his  children,  or  their  agent, 
offered  to  perform  their  part  of  the  agreement  at  the  time  it  was  to  have 
been  performed,  or  at  any  time  since  :  the  agreement  requires  perform- 
ance by  the  children   or  their   agent,    and  there  was  no  proof  of  any 


*129] 


*129]  COLUMBIA,    JANUARY,    1835.  105 

such  agency — the  unautliorized  acts  of  Xathan   Sims  were  not  such  au 
offer  to  perform  as  required  performance  on  the  part  of  the  defendant. 

5.  The  positive  answer  of  tlie  defendant,  that  there  was  no  olVer  to 
perform  by  the  plaiiitiffs  or  their  agent,  is  conclusive  against  them,  the 
proof  as  to  the  acts  of  Nathan  Sims  being  vague  and  indefinite. 

6.  That  there  is  a  phxin  and  adequate  remedy  at  law,  and  this  Court 
has  therefore  no  jurisdiction. 

7.  That  the  consideration  is  grossly  inadequate — the  agreement  is 
unequal,  unreasonable,  unfair,  unjust  and  unconscionable. 

8.  There  is  no  party  responsible  to  the  estate  of  the  testator — no  re- 
ciprocity in  the  contract — no  mutuality. — Sims  being  insolvent,  and  his 
children  minors,  they  should  not  only  be  willing,  but  able  to  perform  the 
contract. 

9.  Reuben  Sims  is  insolvent — the  contract  uncertain  and  executory, 
and  no  part  performed, — no  injury  can  therefore  result  to  the  plaintiffs. 

10.  That  the  decree  is  in  every  respect  contrary  to  equity  and  evi- 
dence. 

Herndon,  for  the  defendant,  argued  that  after  the  motion  for  injunction 
had  failed,  the  bill  being  filed  before  the  time  fixed  for  the  performance  of 
the  agreement,  was  stripped  of  all  equity.  After  the  time  fixed  for  per- 
formance, and  on  the  case  being  called  for  trial,  leave  to  amend  was 
granted,  by  inserting  an  important  allegation;  it  was  in  effect  a  new  bill, 
for  relief  could  not  have  been  had  under  the  first  bill  at  the  time  it  was 
filed,  and  with  the  statement  contained  in  it.  Under  such  circumstances, 
to  allow  the  amendment  was  improper ;  or  if  allowed,  the  costs  of  the 
case  up  to  that  time,  should  have  been  paid  for  the  leave.  The  agree- 
ment was  not  proved,  and  the  answer  requires  proof  of  it.  Stevens' 
*signature  was  proved,  but  not  Sims',  and  such  proof  was  r^ion 
necessary.  New.  on  Cont.  161.  On  the  fourth  and  fifth  grounds,  •- 
he  contended  that  there  was  not  sufficient  proof  of  an  offer  to  perform  on 
the  part  of  the  plaintiffs  or  their  agent.  There  was  no  evidence  that 
Nathan  Sims  was  acting  for  the  children,  and  unless  he  came  with  au- 
thority from  them,  the  defendant  would  not  have  been  justified  in  deliv- 
ering the  negroes  to  him.  But  at  most,  conceding  that  he  was  autliorized 
so  to  act,  it  was  a  mere  loose  conversation  ;  to  make  it  effectual  as  a 
tendei',  the  money  should  have  been  deposited  with  the  Commissioner. 
The  defendant,  however,  denies  that  such  an  offer  was  made,  and  the 
answer  must  be  evidence,  unless  contradicted  by  two  witnesses,  which  it 
is  not.  It  is  incumbent  on  the  plaintiffs  to  show  that  they  had  done  all 
they  could  do.     Mad.  Chan.   331. 

But  there  is  a  plain  remedy  at  law  by  action  on  this  agreement,  in 
which  it  seems  the  damages  are  liquidated,  and  adequate  relief  could 
thus  be  had.  Can  a  bill  be  maintained  for  the  specific  i)erformance  of  a 
contract  for  the  sale  of  negroes  ?  The  rule  clearly  is,  that  such  a  bill 
cannot  be  sustained  for  personal  chattels  in  general;  and  if  the  case  of 
an  agreement  for  the  sale  of  slaves  is  to  constitute  an  exception,  it  will 
be  now  for  the  first  time  made.  "The  general  rule  is,  that  the  Court 
will  not  direct  the  specific  delivery  of  a  chattel,  because  the  party  has 
plain  and  adequate  remedy  at  law."  Nott,  J.  in  Lining  r.  (Jeddes,  1 
M'C.  Ch.  308  ;  Farley  v.  Farley,  1  M'C.  Ch.  50G,  decides  the  point  that 


*131] 


106  SOUTH   CAROLINA   EQUITY   REPORTS.  [*130 

a  bill  will  not  lie  to  compel  the  delivery  of  slaves.  There  is  nothing 
peculiar  in  the  circumstances  of  this  case,  or  alleged  in  the  bill,  to  induce 
the  Court  to  exercise  its  extraordinary  powers  in  compelling  specific 
performance — nothing  to  prevent  plain  and  adequate  relief  at  law.  New. 
on  Contr.  313. 

On  the  ground  of  inadequacy  of  price,  he  insisted  that  there  was  a 
distinction  between  executed  and  executory  contracts — that  while  mere 
inadequacy  of  price  would  not  be  a  ground  to  set  aside  the  former,  it 
might  prevent  the  Court  from  interposing  to  enforce  the  latter ;  and  that 
to  entitle  a  party  to  specific  performance,  the  contract  must  be  fair,  just, 
and  reasonable.  Osgood  v.  Franklin,  2  John.  Ch.  Rep.  23  ;  1  Mad. 
Chan.  323,  407,  425  :  1  Bro.  Ch.  Ca.  326  ;  10  Yes.  292  ;  Cas.  Temp. 
Talb.  234  ;  Mewl,  on  Contr.  69  ;  Cabeen  v.  Gordon,  1  Hill,  Ch.  54  ; 
Butler  V.  Haskell,  4  Eq.  Rep.  673. 

*According  to  the  evidence,  these  negroes  were  worth  at  the 
time  of  the  contract  $4000,  and  their  yearly  hire  from  1828  to  the 
time  of  performance  $275,  making  for  their  value  and  hire  $5375.  The 
price  agreed  to  be  paid  with  interest,  to  the  same  time,  is  $2472,  leaving 
$2903 — a  clear  gain  to  the  plaintiffs,  and  actual  loss  to  the  defendant. 
Besides,  the  hire  so  far  exceeds  the  interest,  that  if  the  negroes  remain 
much  longer  in  his  possession,  the  plaintiffs  will  have  nothing  to  pay. 
Will  a  Court  of  Equity  enforce  such  a  contract  ? 

The  want  of  mutuality  should  prevent  its  enforcement.  Sims  is  insol- 
vent and  his  children  minors,  and  if  they  were  not,  he  could  not  compel 
them  to  perform,  or  make  any  contract  which  would  be  obligatory  on 
them.  They  are  not  legally  bound  by  this  agreement.  Will  the  Court 
enforce  the  execution  of  a  contract  where  but  one  of  the  parties  is  bound  ? 
In  any  event,  before  performance  was  decreed,  they  should  have  been 
required  to  put  down  the  money.  1  Mad.  Ch.  423  ;  1  Mad.  Rep.  11 ; 
1  M'C.  Ch.  38. 

Lastly,  the  uncertainty  of  the  agreement  is  an  objection — the  amount 
to  be  paid  to  Stevens  for  his  services  is  uncertain,  and  as  yet  entirely 
unknown.     Mad.  Ch.  426;  New.  on  Cont.  157- 

J.  J.  Caldwell  &  A.  W.  Thomson,  for  the  plaintiffs.  They  insisted 
tliat  the  agreement  was  sufficiently  proved.  There  was  proof  of  Stevens' 
signature,  the  ]iarty  against  whom  it  w^as  to  be  enforced,  and  Sims  is 
a  party  plaintiff  in  the  bill  which  he  has  sworn  to  ;  besides,  no  such 
objection  was  urged  on  the  trial  when  the  agreement  was  regarded  as 
being  in  evidence,  on  full  proof  of  its  execution.  The  important  question 
in  the  case  is  as  to  the  jurisdiction.  The  bill  was  not  filed  prematurely. 
The  negroes  were  about  to  be  sold  ;  and  the  bill  was  filed  on  the  familiar 
principle  that  a  Court  of  Equity  will  interpose  to  secure  the  forthcoming 
of  property  to  a  party  not  entitled  to  the  present  possession,  but  in  re- 
mainder. This  is  a  proper  ground  of  equity  jurisdiction,  and  the  refusal 
of  the  Commissioner  to  grant  the  injunction,  does  not  destroy  the  equity. 
The  case  then,  being  properly  in  Court  for  one  purpose,  may  be  retained 
for  every  purpose  ;  the  Court  having  possession  of  the  case,  will  do  com- 
plete and  ample  justice,  and  not  send  the  parties  to  another  tribunal. 
Rathbone  v.  Warren,  10  John.  596;  King  r.  Baldwin,  17  John.  Rep. 
384.     The   subsequent   amendment   to  the  bill   was   properly  allowed. 


*132]  COLUMBIA,    JANUARY,    1835.  107 

♦Leave  to  amend  is  a  matter  in  tlie  discretion  of  the  Court,  and 
that  discretion  has  been  properly  exercised  to  subserve  the  ends  ^ 
of  justice. 

The  general  rule,  that  a  bill  will  not  lie  to  enforce  the  delivery  of  spe- 
cific chattels,  proceeds  on  the  ground  that  adequate  relief  can  be  had  at 
law  by  way  of  damages.  But  in  this  case,  such  relief  cannot  be  had,  for 
it  is  at  least  doubtful  whether  the  estate  would  be  sufficient  for  that  pur- 
pose. Exceptions,  however,  have  been  allowed  to  the  rule,  on  account 
of  some  peculiar  value  attached  to  some  chattels,  where  compensation 
adequate  to  the  loss  could  not  be  had  in  damages ;  as  in  the  case  of  the 
Pusci/  horn,  and  family  paintings,  &c.  The  same  reason  applies.  These 
are  family  negroes,  the  most  of  them  raised  with  the  plaintifls — their  quali- 
ties were  known,  and  feelings  of  kindness  and  attachment  had  grown  up 
between  them.  Will  the  Court  exercise  its  sensibilities  in  favor  of  a 
painting  or  a  Pusey  horn,  and  withhold  them  in  the  case  of  a  human  being  ? 
From  the  principles  laid  down  in  all  the  cases  on  this  subject,  it  appears, 
that  where  damages  would  be  no  adequate  compensation,  or  the  injury 
would  be  irreparable  without  it,  specific  performance  will  be  decreed.  In 
Howard  v.  Hopkins,  2  Atk.  3tl,  the  specific  performance  of  articles  for 
the  purchase  of  an  estate  was  decreed,  although  a  penalty  was  fixed  for 
non-performance.  See  also  Goring  v.  Kash,  3  Atk.  18G-T.  Whatever 
may  be  the  doctrine  of  the  English  Courts,  in  this  State,  bills  have  been 
sustained  for  the  delivery  of  slaves.  Wamburzee  v.  Kennedy,  4  Eq.  Rep. 
414  ;  Brown  v.  Gilliland,  .3  Eq.  Rep.  541  ;  Chick  v.  Smith,  Harp.  Eq. 
Rep.  298,  And  specific  performance  of  contracts  for  the  sale  of  slaves, 
has  been  decreed  in  Kentucky  and  North  Carolina.  4  Bibb,  186  ;  2  Bibb, 
410  ;  2  Murphy,  14.  Farley  v.  Farley,  is  not  directly  opposed  to  such  a  bill 
being  sustained.  The  bill  in  that  case  was  dismissed  because  the  proper 
parties  were  not  before  the  Court.     It  ought,  however,  to  be  reviewed. 

The  want  of  mutuality  is  no  objection.  There  is  the  same  want  of  it  in 
every  contract  between  an  adult  and  a  minor,  where  one  is  bound  and  the 
other  not;  and  as  to  Sims'  insolvency,  the  defendant  has  the  security  in 
his  own  hands — the  Court  will  take  care  that  the  money  shall  be  paid. 

As  to  the  inadequacy  of  price,  it  is  not  pretended  that  there  was  any 
fraud  in  the  transaction.  Stevens  was  certainly  not  overreached  ;  but, 
actuated  by  benevolent  motives,  consented  to  forego  a  *specula-  r^ioo 
tion  on  being  reimbursed  what  he  had  paid.  Nor  is  there  any  ^ 
thing  in  the  objection,  that  there  was  no  offer  to  perform  on  the  ])art  of 
the  plaintiff's.  Nathan  Sims  was  their  next  friend  in  the  bill ;  he  was 
notoriously  acting  on  their  behalf — the  answer  in  this  part  is  not  distinct, 
and  the  evidence  is  satisfactory. 

Harper,  J.  I  shall  first  consider  that  which  perhaps  constitutes  the 
only  diEBcult  or  material  subject  of  investigation  in  the  case — the  ques- 
tion, whether  the  bill  for  the  specific  performance  of  this  contract  can  be 
maintained  in  this  Court,  which  constitutes  the  sixth  ground  of  the  appeal. 
The  cases  of  Pusey  v.  Pusey,  1  Vern.  273  ;  of  Duke  of  Somerset  v.  Cook- 
son,  3  Pr.  Wms.  390  ;  Buxton  v.  Lister,  3  Atk.  383  ;  Fells  i\  Head,  3 
Ves.  10;  Loyd  v.  Loaring,  6  Ves.  118;  Lowther  r.  Lowther,  13  Ves. 
95  ;  and  Macclesfield  v.  Davis,  3  Yes.  &  B.  Ifi,  i)ut  it  out  of  the  question 
that  a  bill  will  lie  in  many  cases  for  the  specific  delivery  of  a  chattel. 


*134] 


108  SOUTH    CAROLINA    EQUITY    REPORTS.  [*133 

It  seems  to  have  been  a  matter  of  some  uncertainty  in  our  own  deci- 
sions, whether  a  bill  may  be  maintained  for  the  specific  delivery  of  a  slave, 
and  in  what  cases  ;  and  it  is  desirable  that  we  should  come  to  some  specific 
conclusion  on  the  subject.  The  general  principle  on  which  the  decisions  go 
is,  that  where  damages  will  not  be  an  adequate  compensation,  the  party 
is  not  entitled  to  relief  in  equity.  But  the  principle  might  perhaps  be 
more  broadly  stated.  The  method  of  relief  on  contracts  in  equity,  is  to 
carry  them  into  specific  execution,  and  it  is  laid  down  in  the  text  of  Fon- 
blanque,  B.  1,  Ch.  iii.  sec.  1,  that  "where  the  contract  is  good  at  law, 
equity  will  carry  it  into  execution."  The  commentator  on  Fonblanque, 
ib.  n.  c.  observes,  "this  proposition  is  too  generally  stated;  for  though 
equity  will  enforce  the  specific  performance  of  fair  and  reasonable  con- 
tracts, where  the  party  wants  the  thing  in  specie  and  cannot  have  it  in  any 
other  way ;  yet,  if  the  breach  of  the  contract  can  be,  or  was  intended  to 
be  compensated  in  damages,  Courts  of  Equity  will  not  interpose."  In 
general,  where  the  contract  related  to  personalty,  the  party  was  not  sup- 
posed to  want  a  specific  execution,  and  no  doubt  very  much  for  the  reason 
assigned  in  the  same  chapter,  "  that  chattels  were  of  little  value  at  the 
common  law,  when  personal  property  was  but  small." 

The  principle  may  be  illustrated  by  the  cases  in  which  specific  per- 
formances of  such  contracts  has  been  refused.  In  Cud  v.  Rutter,  1  Pr.  Wms. 
510,  where  the  contract  was  for  the  transfer  of  stock,  *the  reason- 
ing of  the  Chancellor  was,  "that  a  Court  of  Equity  ought  not  to 
execute  any  of  these  agreements,  but  to  leave  them  to  law  where  the  party 
is  to  recover  damages,  and  with  the  money  may,  if  he  pleases,  buy  the 
quantity  of  stock  agreed  to  be  transferred  to  him  ;  for  there  can  be  no 
difference  between  one  man's  stock  and  another's.  It  is  true,  one  parcel 
of  land  may  vary  from  and  be  more  commodious,  pleasant  or  convenient 
than  another  parcel  of  land,  but  £1000  South  Sea  Stock,  whether  it  be 
A,  B,  or  C's,  is  the  same  thing,  and  in  no  sort  variant."  Yet  in  Colt  v. 
Netterville,  2  Pr,  Wms.  304,  where  the  bill  was  to  have  a  transfer  of 
stock  which  was  rising  rapidly  in  value,  the  Chancellor  seemed  to  doubt 
whether  justice  did  not  require  the  transfer  to  be  decreed.  In  Errington 
V.  Aynesly,  2  Br.  C.  C.  343,  the  Master  of  the  Rolls,  refusing  specific  per- 
formance of  an  agreement  to  build  a  bridge,  says,  "  there  is  no  case  of  a 
specific  performance  of  an  agreement  to  build  a  house,  because,  if  A  will 
not  do  it,  B  may.  A  specific  performance  is  only  decreed  where  the  party 
wants  the  thing  in  specie,  and  cannot  have  it  in  any  other  way." 

In  the  cases  of  the  Pusey  horn,  of  the  antique  altar-piece  which  had 
been  long  in  the  family,  of  the  ornamented  silver  tobacco-box,  the  property 
of  a  club,  and  some  others,  it  was  only  the  feelings  and  imagination  of  the 
owners,  giving  the  articles  a  peculiar  value  to  them,  which  a  jury,  fixing 
the  market  value,  could  not  be  supposed  to  estimate,  that  was  held  to 
entitle  them  to  relief.  In  Fells  v.  Read,  the  Chancellor  remarks  in  rela- 
tion to  those  cases  :  "  It  was  not  to  be  cast  to  the  estimation  of  people 
who  have  not  those  feelings.  In  all  cases  where  the  object  of  the  suit  is 
not  liable  to  a  compensation  by  damages,  it  would  be  strange  if  the  law  of 
this  country  did  not  afford  any  remedy.  It  would  be  great  injustice  if  an 
individual  cannot  have  his  property  without  being  liable  to  the  estimate 
of  people  who  have  not  his  feelings  upon  it."   In  Buxton  v.  Lister,  a  dif- 


*134]  COLUMBIA,    JANUARY,    1835.  109 

ferent  class  of  cases   is  considered.     The  case  of  Taylor  v.  Neville,  is 
referred  to : 

"  That  was  for  a  performance  of  articles  for  sale  of  eij^lit  hundred  tons 
of  iron,  to  be  paid  by  instalments,  and  a  specific  performance  was  decreed. 

"  There  are  several  circumstances  which  may  concur. 

"A  man  may  contract  for  the  purchase  of  a  great  quantity  of  timber, 
as  a  ship  carpenter,  by  reason  of  the  vicinity  of  the  timber. 

"  On  the  part  of  the  seller,  suppose  a  man  wants  to  clear  his  land,  r=|ci  oc 
in  order  to  turn  it  to  a  particular  sort  of  husbandry,  here  nothing  L 
can  answer  the  justice  of  the  case,  but  the  performance  of  the  contract  in 
specie. 

"In  the  case  of  John,  Duke  of  Buckinghamshire  i'.  Ward,  a  l)ill  was 
brought  for  the  specific  performance  of  a  lease  relating  to  Alum  Works 
and  the  trade  thereof,  which  would  be  greatly  damaged  if  the  covenant 
was  not  performed  on  the  part  of  Ward. 

"The  covenants  lay  there  in  damages,  and  yet  the  Court  considered,  if 
they  did  not  make  such  a  decree,  an  action  afterwards  would  not  answer 
the  justice  of  the  case." 

The  general  principle  is,  that  the  Court  will  execute  any  fair  and  rea- 
sonable agreement,  unless  it  appears  that  full  justice  may  be  done  by  a 
compensation  in  damages.  Now,  if  these  numerous  and  uncontradicted 
decisions  are  evidence  of  the  law,  then  it  is  certain  that  there  may  be 
some  cases  in  which  a  bill  will  lie  for  the  specific  delivery  of  a  slave. 
Suppose  the  case,  which  I  have  known,  of  a  slave  accustomed  to  wait  on 
a  deaf  and  dumb  person,  and  from  long  habit  able  to  communicate  ideas 
with  him.  This  would  add  nothing  to  his  market  value,  though  render- 
ing him  inestimable  to  his  owner.  Many  similar  cases  may  be  conceived. 
A  slave  may  have  been  the  nurse  of  her  master's  children,  or  may  have 
saved  the  life  of  one  of  his  master's  family.  In  such  cases,  what  mock- 
ery would  it  be  to  tell  the  master  that  he  might  have  full  compensation 
by  damages  for  the  loss  of  the  slave  ?  And  unless  there  be  something 
very  perverse  in  the  disposition  of  the  master  or  the  slave,  in  every 
instance  where  a  slave  has  been  reared  in  a  family,  there  exists  a  mutual 
attachment  between  the  members  of  it  and  himself.  The  tie  of  master 
and  slave  is  one  of  the  most  intimate  relations  of  society.  In  every  age 
the  distinction  has  been  recognized  between  the  slave  brought  up  in  his 
master's  household  and  one  casually  acquired.  And  it  may  be  said,  that 
such  an  one  is  actually  of  more  value  to  the  master  than  he  would  be  to 
a  stranger.  The  owner  better  understands  his  qualities,  and  what  he^  is 
capable  of  performing,  and  the  slave  will  be  more  likely  to  serve  with 
cheerfulness  and  fidelity.  These  considerations  are  greatly  strengthened 
by  that  of  humanity  to  the  slave  himself.  Are  not  such  feelings  worthy 
of  more  regard  than  the  taste  which  would  covet  an  antique  altar-piece 
or  a  picture  of  Titian  ?  We  have  the  principle  from  the  English  deci- 
sions, but  an  infinitely  stronger  case  in  which  to  apply  it. 

In  the  case  before  us,  it  appears  that  the  slaves  in  question  were  r*]L3g 
brought  up  in  the  family  of  the  plaintiffs,  and  according  to  the 
view  I  have  taken,  this  makes  the  case  in  which  a  bill  may  be  maintained. 
But  it  is  argued  that  this  may  lead  to  very  extensive  consequences. 
Though  not  strictly  born  and  reared  in  the  master's  family,  yet  there  may 
be  the  same  attachment  and  the  same  circumstances  to  give  a  peculiar 


110  SOUTH   CAROLINA   EQUITY    REPORTS.  [*136 

valne,  from  a  shorter  ownership.  Slaves  are  moral  and  intellectual 
beings,  having  qualities  infinitely  diversified,  and  in  every  case  where 
specific  slaves  are  contracted  for,  it  might  be  said  that  the  contract  was 
made  with  a  view  to  those  peculiar  qualities.  But  I  am  not  to  shrink 
from  enforcing  a  well-settled  principle  of  law,  because  it  may  lead  to 
unforeseen  consequences.  I  believe  these  consequences  will  follow,  and  I 
am  prepared  to  lay  it  down  as  a  general  rule,  that  a  bill  tvill  lie  for  the 
specific  delivery  of  slaves,  as  for  the  specific  performance  of  a  contract 
for  the  sale  of  land ;  and  in  saying  this,  I  believe  I  am  giving  effect  to  the 
law,  according  to  its  true  meaning. 

We  have  seen  that  the  principle  is,  that  equity  will  enforce  contracts 
specifically,  unless  it  appear  that  there  may  be  full  compensation  in  dam- 
ages. But  this  cannot  appear  in  the  case  of  slaves,  any  more  than  in  a 
contract  for  the  sale  of  land. 

In  case  of  the  purchase  of  land,  it  is  presumed  that  the  party  was  in- 
duced by  some  particular  liking,  or  some  convenience  in  the  particular 
land.  But  there  is  as  great,  and  perhaps  greater  reason  for  supposing 
that  a  purchaser  of  specific  slaves  has  a  view  to  their  peculiar  qualities. 

The  objection  at  common  law,  that  chattels  were  of  little  value,  does 
not  apply  to  these.  They  are  a  property  no  less  permanent  and  valuable 
than  the  land  itself.  It  is  said  in  Buxton  v.  Lister,  "As  to  cases  of  con- 
tracts for  purchase  of  lands,  or  things  that  relate  to  realities,  those  are  of 
a  permanent  nature,  and  if  a  person  agrees  to  purchase  them,  it  is  on  a 
particular  liking  to  the  land,  and  is  quite  a  different  thing  from  matters 
in  the  way  of  trade."  Does  not  this  apply  equally  to  slaves  ?  Can  you 
say,  as  in  the  cases  which  relate  to  stock,  that  one  man's  slave  is  as  good 
as  another  man's  slave  ?  It  may  chance  to  be  so ;  as  it  might  happen 
that  a  man  might  with  the  damages  recovered  for  a  breach  of  contract  to 
sell  land,  buy  other  land  equally  convenient  and  agreeable ;  but  this  is 
not  generally  so,  nor  so  to  be  presumed.  The  fair  presumption  is,  that 
when  a  man  contracts  for  particular  slaves,  he  wants  to  have  them  in 
specie. 

*1R71  *With  us  slaves  are  commonly  employed  on  land.  Suppose  a 
-I  man  at  the  same  time  to  contract  for  land  and  the  slaves  employed 
upon  it;  it  would  be  nugatory,  and  defeat  his  object  altogether,  to  give 
him  the  land,  if  he  could  not  have  the  slaves.  The  cases  are  so  many 
and  various  in  which  justice  could  only  be  done  by  a  specific  delivery, 
that  it  is  best  to  have  a  general  and  certain  rule.  It  is  on  such  views  I 
suppose,  that  the  same  doctrine  has  been  established  in  other  States  where 
slavery  exists.  Cases  to  this  effect  were  quoted  from  Kentucky  and  North 
Carolina— 4  Bibb,  186  ;  2  Bibb,  410  ;  2  Murphy,  74. 

There  may  be  exceptions  to  the  rule.  If  it  appeared  that  the  pur- 
chaser contracted  for  the  slaves  as  merchandise  to  sell  again,  this,  ac- 
cording to  the  expression  in  Buxton  v.  Lister,  would  be  merely  a  matter 
in  the  w^ay  of  trade,  and  in  such  case  it  is  certain  that  complete  justice 
might  be  done  by  a  compensation  in  damages.  But  the  general  rule 
must  be  as  I  have  stated. 

This  dispenses  with  the  necessity  of  considering  some  of  the  other 
grounds  on  which  the  jurisdiction  of  the  Court  was  attempted  to  be  sup- 
ported. The  other  grounds  of  appeal,  as  I  have  before  observed,  will 
require  but  slight  notice. 


*137]  COLUMBIA,    JANUARY,    1835.  HI 

The  first  and  second  may  be  considered  together.  They  arc  founded 
upon  a  misconception  of  the  practice  of  equity,  arguing  from  anahjgy  to 
proceedings  at  law.  If  a  bill  appear  on  the  face  of  it  to  be  prematurely 
tiled,  and  advantage  be  taken  of  this  by  demurrer,  the  demurrer  will  be 
fatal.  If  there  be  no  demurrer,  and  the  case  be  brought  to  a  hearing 
before  the  time  fixed  for  the  iierforraance  of  the  contract,  there  might  be 
reason  to  contend  that  the  bill  should  be  dismissed.  But  if  no  advan- 
tage be  taken  by  demurrer,  and  it  be  not  brought  to  a  hearing  till  the 
proper  time  of  performance  has  elapsed,  the  Court  would  not  do  so 
nugatory  a  thing  as  to  dismiss  the  bill  in  order  to  compel  the  party  im- 
mediately to  file  another  bill  for  the  very  same  purpose.  Equity  can  do 
full  justice  to  the  parties  by  preventing  surprise  and  imposing  costs  on 
the  parties  by  whose  fault  they  were  prematurely  and  unnecessarily  in- 
curred. But  this  bill  was  not  prematurely  filed  with  respect  to  the  ob- 
ject which  the  parties  then  had  in  view — the  preventing  of  the  sale  of 
the  slaves.  Coming  for  this  purpose,  as  the  time  of  performance  was  on  the 
eve  of  arriving,  it  was  proper  that  all  the  matters  in  controversy  should 
be  brought  forward  to  prevent  multiplicity  of  litigation.  The  leave  to 
amend  was  matter  of  discretion,  and  we  think  it  was  properly  exercised. 

*There  is  nothing  in  the  third  ground  as  respects  either  the  r:ciqo 
law  or  the  fact :  the  agreement  was  received  in  evidence,  without  ^ 
any  objection  (so  far  as  appears  from  the  report  of  the  Judge)  to  the 
proof  of  its  execution.  No  doubt  seems  to  have  been  seriously  enter- 
tained of  the  fact  of  its  execution  by  Reuben  Sims,  and  if  there  were  any 
such  casual  omission,  as  is  supposed,  we  should  certainly  send  the  cause 
back  that  the  defect  might  be  supplied. 

The  fourth  and  fifth  grounds  may  be  taken  together.  The  objection 
seems  to  be,  that  it  does  not  appear  that  Nathan  Sims,  who  is  alleged  to 
have  offered  payment  of  the  money,  was  the  authorized  agent  of  the 
plaintiffs.  There  was  no  need  of  any  such  proof.  Any  one  who  would 
offer  to  pay  the  money  in  their  behalf  was  agent  enough,  and  they  might 
adopt  his  act.  Besides,  most  of  the  plaintiffs  were  infants,  incapable  of 
appointing  an  agent,  and  no  other  agent  than  such  a  voluntary  one  could 
have  been  contemplated  by  the  agreement. 

With  respect  to  the  fact  of  the  money  having  been  offered,  it  was  mat- 
ter of  evidence  for  the  Chancellor.  Even  at  law,  if  a  debtor  has  the 
money  ready,  and  informs  his  creditor  that  he  is  ready  to  pay  him,  and 
the  creditor  declares  beforehand  that  he  will  not  receive  it,  there  is  no 
need  to  prove  a  formal  tender.  It  is  argued  that  the  answer  denies  the 
offer,  and  that  it  is  only  proved  (and  that  imperfectly)  by  the  testimony 
of  a  single  witness,  Boyce.  I  think  the  answer  is  equivocal,  and,  so  far 
from  contradicting,  supports  the  testimony  of  Boyce.  The  defendant 
denies  "that  the  said  lieuben  Sims  and  his  children,  or  either  of  them, 
did,  at  the  time  that  the  said  contract  was  to  be  performed,  offer  to  per- 
form their  part  of  the  same,  according  to  the  promise  thereof.  This  de- 
fendant not  knowing  that  there  ivas  any  agent  of  the  said  childi-en,  or 
who  he  ivas,  neither  does  he  believe  that  there  was  any  such  person 
legally  to  act  for  the  said  children,  d;c.^'  He  plainly  appears  to^  rest 
his  denial  that  Reuben  Sims,  or  his  children,  offered  performance,  o'n  his 
own  conclusion  that  there  was  no  person  legally  authorized  to  offer  per- 
formance on  their  behalf.     Such  a  method  of  answering  cannot  be  too 


112  SOUTH    CAROLINA    EQUITY   REPORTS.  [*138 

strongly  censured.     It  is  generally  an  attempt  to  gain  the  benefit  of  false- 
hood, without  being  subject  to  the  direct  charge  of  it. 

With  respect  to  the  seventh  ground,  the  Chancellor's  reasoning  is  en- 
tirely satisfactory.     The  Court  refuses  to  enforce  the  specific  performance 


* 


139] 


of  agreements,  on  the  grounds  of  inadequacy  of  consideration,* 


because  it  infers  that  there  must  be  hardship,  injustice  or  mis- 
take. But  if  the  testator,  having  purchased  the  property  of  plaintiffs' 
father,  at  a  low  price,  chooses  out  of  humanity  to  give  them  the  benefit 
of  it,  upon  being  reimbursed  what  he  has  paid  with  interest,  the  whole 
doctrine  is  inapplicable.  As  the  hire  stipulated  to  be  paid  after  the  1st 
of  January,  1828,  exceeds  the  interest  to  be  received  by  the  estate  of 
Stevens,  in  order  to  make  out  an  enormous  inadequacy,  calculations  were 
entered  into  for  the  purpose  of  showing  that  if  the  period  of  perform- 
ance should  be  deferred  for  some  time,  the  debt  to  Stevens'  estate  will  be 
extinguished  by  that  excess ;  so  that,  in  fact,  the  estate  of  Stevens  will 
receive  nothing.  But  this  also  is  founded  in  misconception.  If  the 
estate  pays  hire,  it  receives  the  service  of  the  slaves,  and  we  must  sup- 
pose the  one  to  be  equivalent  to  the  other.  Then,  if  this  be  so,  thdugh 
the  debt  should  be  entirely  extinguished,  all  that  we  can  say  is,  that  it 
has  been  paid  in  the  services  of  slaves,  instead  of  money.  If  the  services 
be  in  fact  equivalent  to  the  hire,  the  estate  will  be  in  no  worse  condition 
than  if  the  contract  had  been  performed  at  the  day.  If  the  defendants 
be  entitled  to  the  performance  of  the  contract,  they  have  been  deprived 
of  the  services  of  the  slaves  from  that  day. 

Under  the  eighth  ground,  the  want  of  mutuality  in  the  contract  is 
relied  on  ;  that  is  to  say,  that  defendant's  testator  could  not  have  enforced 
performance  against  the  plaintiffs,  who  were  no  parties  to  the  contract. 
There  can  be  no  doubt  but  that  Reuben  Sims  and  the  testator  were  bound 
at  law.  In  Lowther  v.  Carrill,  1  Vern.  521,  it  was  held  to  be  sufficient 
if  the  writing  be  signed  by  the  party,  who  sought  to  be  charged  by  the 
bill,  and  such  is  said  to  have  been  the  case  of  Hatton  v.  Grey,  2  Ch.  Ca. 
164.  This  was  denied,  however,  by  Lord  Redesdale,  in  Lawrenson  v. 
Butler,  1  Sch.  &  Lef.  20,  and  in  Shannon  v.  Bradstreet,  lb.  58,  in  which 
he  holds  that  both  parties  must  be  bound,  or  the  Court  will  not  enforce 
the  performance.  But  he  makes  the  exception  expressly  in  the  case  of 
infants.  "  It  is  the  peculiar  privilege  of  infants  for  their  protection,  that 
though  they  are  not  bound,  yet  those  who  enter  into  contracts  with  them 
shall  be  bound,  if  it  be  prejudicial  to  the  infant  to  rescind  the  contract." 
See  also  Campbell  v.  Leach,  Amb.  147,  quoting  Holt  v.  Ward,  Fitz. 
275.  Most  of  the  plaintiffs  were  infants  at  the  time  of  the  contract,  and 
under  the  exception  entitled  to  performance.  But  the  contract  is  one 
and  entire,  and  must  be  performed  entirely  or  not  at  all. 
*1401  *The  ninth  ground  is  also  misconceived.  As  between  E,euben 
-^  Sims  and  defendant's  testator  the  remedy  was  only  at  law,  and  at 
law  there  would  be  no  question  of  solvency  or  insolvency,  with  reference 
to  the  validity  of  the  contract.  In  equity,  there  have  been  some  cases 
in  which  the  Court  has  refused  to  enforce  specific  performance  of  a  con- 
tract for  a  lease,  on  the  ground  of  the  tenant's  insolvency.  Buckland  v. 
Hall,  8  Yes.  92;  O'Herlihy  v.  Hedges,  1  Sch.  &  Lef.  123.  This  was 
on  the  ground  that  the  insolvency  of  the  tenant  might  endanger  the  future 
payments  of  rent ;  and  more  especially  where  money  was  to  be  laid  out 


*140]  COLUMBIA,   JANUARY,    1835.  113 

by  the  tenant  in  repairs  or  improvements.  But  it  is  distinguished  from 
the  case  of  a  contract  to  purchase,  because,  in  such  case,  it  is  said,  the 
bill  tenders  the  purchase  money,  and  the  Court  will  not  decree  a  title  to 
be  made  until  the  purchase  money  is  paid,  or  secured  to  be  paid  The 
insolvency  of  the  vendee  is  therefore  immaterial.  But  in  this  case,  by  the 
terras  of  the  contract,  the  slaves  are  not  to  be  transferred  till  the  money 
is  paid,  and  if  it  were  not  so,  the  Court  would  take  care  that  it  should  be 
paid  or  secured. 

With  respect  to  the  uncertainty  which  is  supposed  to  render  the  con- 
tract void,  it  may  be  sufficient  to  observe  that  there  is  no  uncertainty  in 
the  contract  in  which  the  plaintiffs  are  concerned.  The  terms  on  which 
the  slaves  are  to  be  transferred  to  them,  are  perfectly  certain  ;  but  there 
is  a  distinct  stipulation,  entirely  independent  of  this  contract,  by  which 
Reuben  Sims  covenants  "  to  pay  the  said  E.  Stevens  for  his  trouble  and 
expense  for  attending  to  a  law  suit,  what  any  two  or  three  good  disin- 
terested men  shall  say  it  is  worth."  This  is  the  personal  undertaking  of 
Reuben  Sims,  on  which  the  remedy  could  only  be  at  law.  No  doubt 
separate  contracts  may  be  contained  in  the  same  instrument,  and  this 
may  be  so  regarded.  Certainly  it  is  no  part  of  the  contract'with  the  plain- 
tiS's.     The  Chancellor's  decree  is  affirmed. 

Johnson  and  O'Neall,  Js.,  concurred. 


Alexander  Davidson,  Surviving  Executor  of  George  Neely,  v.  John 
Ruff,  Administrator,  and  others. 

Testator  directed  his  estate  to  be  sold  and  the  interest  of  the  fund  arising  thence 
to  be  paid  to  his  son  S.  annually,  and  the  principal  to  be  equally  divided  amongst 
the  lawful  issue  of  S.  as  they  came  of  age  or  married;  "and  in  default  of  such 
heirs  to  go  to  his  next  of  kin  to  be  equally  divided  amongst  them  at  the  death  of 
S.;  S.  died  Y?ithout  issue. — Ilchl,  1.  That  the  limitation  over  to  the  next  of  kin, 
■was  not  too  remote:  2.  That  S.  was  entitled  to  the  interest  on  the  whole  sum 
annually  during  his  life;  and  his  administrator  to  the  interest  which  accrued  in 
the  year  he  died,  up  to  the  time  of  his  death.  [*141] 

George  Neely  died,  leaving  of  force  his  last  will  and  testament,  in 
which,  after  giving  his  whole  estate  to  his  wife  for  life,  he  *deviscs  r^^^j 
and  bequeaths  as  follows :  "  It  is  my  will  and  desire  that  at  the 
death  of  ray  said  wife,  that  all  the  above-naraed  property,  (or  what  re- 
mains of  the  same)  shall  be  sold,  and  the  interest  arising  from  the  amount 
of  the  said  sale  shall  be  annually,  or  as  soon  as  it  can  be  collected,  paid 
to  my  said  son  Samuel,  and  the  principal  or  amount  of  said  sale  to  remain 
in  the  hands  or  care  of  my  executors  hereinafter  named,  to  be  equally 
divided  amongst  the  lawful  issue  of  my  aforesaid  son  Samuel,  (if  any,)  as 
they  come  to  the  age  of  twenty-one  or  marry,  and  in  default  of  such  heirs, 
to  go  to  his  next  of  kin,  to  be  eqally  divided  amongst  them  at  the  expira- 
tion or  death  of  my  aforesaid  son,  Samuel  Neely." 

On  the  death  of  the  widow,  the  executors  sold  the  property  according 
to  the  directions  of  the  will,  and  annually,  up  to  January,  1^33,  paid  to 
Samuel  Neely  the  interest  on  the  amount  of  the  sale.     Samuel  Neely 


*142] 


114  SOUTH  CAROLINA    EQUITY    REPORTS.  [*141 

died  in  September,  1833,  unmarried,  without  issue  and  intestate,  and  the 
defendant.  Ruff,  administered  on  his  estate. 

This  was  a  bill  of  interpleader,  filed  by  the  plaintiff,  as  survivinj^ 
executor  of  George  Neely,  stating  that  soon  after  the  death  of  Samuel, 
he  was  notified  by  Mary  Neely  and  Margaret  Brown,  that  they  claimed 
the  funds  in  his  hands  as  next  of  kin  to  Samuel  Neely,  the  one  as  his 
paternal,  and  the  other,  as  his  maternal  aunt;  and  a  like  notice  from  the 
defendant,  Ruff,  claiming  the  whole  as  administrator.  And  the  bill 
prays,  that  these  claimants  be  brought  before  the  Court,  and  their  rights 
adjudicated. 

Chancellor  Johnston.     The  defendant.  Ruff,  contends — 

1.  That  he  is  entitled  to  the  whole  capital  and  interest  left  at  his  intes- 
tate's death.     If  he  fail  here,  he  insists — 

2.  That  he  is  entitled  to  the  interest  of  the  entire  year  in  which 
Samuel  Neely  died.     Failing  in  this,  he  claims — 

3.  The  interest  of  that  year  up  to  the  time  Samuel  Neely  died. 

His  claim  to  the  whole  capital  and  interest,  is  founded  on  an  assump- 
tion that  the  limitation  to  the  next  of  kin  to  Samuel  Neely  is  too  remote. 
Assuming  this,  he  insists  that  the  bequest  reverted  to  the  testator. 

*The  Court  of  Appeals  has,  to  be  sure,  decided  that  there  may 
be  a  reverter  of  personalty.  (Geiger  v.  Brown.)  But  if  this 
bequest  did  revert,  it  became  distributable  as  intestate  property.  The 
right  to  distribution  vested  in  the  testator's  widow  and  son,  and  this 
defendant,  as  the  son's  administrator,  could  receive  only  two-thirds  of  it 
To  recover  the  widow's  third,  administration  to  her  must  be  taken  out. 

But  I  am  satisfied  that  the  limitation  is  good.  It  is  not  necessary  to 
refer  to  authorities  for  the  doctrine  that  a  limitation  is  valid  if  it  is  to 
take  effect  at  the  termination  of  existing  lives  or  a  fixed  period  beyond 
them,  which  it  is  unimportant  to  mention  here.  Although  the  limitation 
is  upon  failure  of  issue,  to  whom  there  is  a  prior  bequest ;  yet,  if  there  be 
expressions  showing  that  the  testator  did  not  mean  an  indefinite  failure 
of  issue,  but  a  failure  within  the  period  I  have  mentioned,  or  if  that  be 
necessarily  inferable  from  the  period  fixed  for  the  limitation  to  take 
efi"ect,  the  limitation  is  not  too  remote. 

Here  the  previous  bequest  is  to  the  lawful  issue  of  Samuel  Neely  ;  in 
default  of  such  issue,  then  to  his  next  of  kin,  to  be  divided  among  them 
at  his  death. 

The  limitation  is  to  be  carried  into  execution  at  Samuel  Neely's  death, 
which  shows  that  the  testator  contemplated  that  the  failure  of  issue,  upon 
which  it  was  to  depend,  should  exist  at  that  time  ;  that  is,  he  intended  to 
limit  not  on  an  indefinite  failure  of  issue,  but  upon  a  failure  at  Samuel 
Neely's  death. 

I  have  proceeded  on  the  supposition  that  the  limitation  over  does  not 
in  terms  vest  the  legacy  in  the  next  of  kin  upon  Samuel's  death,  but  vests 
it  in  them  indefinitely  and  merely  fixes  that  as  the  time  for  executing  the 
trust  by  dividing  it  among  them.  I  am  convinced  that  pointing  that 
period  out  as  the  time  for  delivering  the  legacy  to  the  next  of  kin,  is  suffi- 
cient evidence  that  the  testator,  by  "  failure  of  issue,"  meant  a  failure  at 
that  time. 

But  by  barely  including  the  words  "  to  be  equally  divided  among  them," 


*142]  COLUMBIA,   JANUARY,    1835.  115 

in  a  parenthesis,  the  limitation  will  be  turned  into  a  legacy,  the  right  to 
which  vested  at  Samuel's  death. 

With  respect  to  the  interest,  I  feel  little  difiQculty.  The  testator  could 
not  intend  that  the  capital  should  be  apportioned  among  the  issue  of 
Samuel  as  they  should  come  of  age,  if  that  should  happen  during  Samuel's 
life.  The  direction  is  that  it  be  apportioned  equally  among  them.  Until 
his  death,  it  could  not  be  ascertained  how  many  there  would  be  of  tliem ; 
nor,  of  course,  what  the  equal  *share  of  each  should  be.  As  none  [-:«, -q 
of  the  capital  therefore  was  to  become  divisible  till  Samuel's  death,  '- 
and  as  the  executors  were  directed  to  pay  him  the  interest  annually,  it 
follows  that  he  was  entitled  to  the  interest  on  the  whole  sum,  annually, 
during  his  whole  life  That  is,  that  all  the  interest  was  given  to  him 
until  the  capital  should  go  over  according  to  the  terms  of  the  will.  But 
he  was  paid  the  interest  up  to  the  beginning  of  the  year  in  which  he  died. 
"Whether  his  administrator  is  entitled  to  the  ^vhole  interest  of  that  year, 
or  the  interest  up  to  his  death  merely,  is  concluded  in  my  opinion  by 
Fronty  v.  Wagner,  in  which  it  was  held  there  should  be  an  apportion- 
ment. 

The  plaintiff  had  good  cause  for  filing  his  bill ;  and  is  entitled  to  his 
costs  and  reasonable  expenses  of  suit  out  of  the  fund. 

It  is  decreed  that  the  defendant,  Ruif,  as  administrator  of  Samuel 
Neely,  is  entitled  to  the  interest  of  the  fund  which  accrued  in  the  year  of 
his  intestate's  death,  up  to  the  time  of  said  death,  and  that  he  may  have 
a  reference  to  ascertain  the  same. 

That  the  defendants,  Mary  Neely  and  Margaret  Brown,  as  next  of  kin 
to  Samuel  Neely,  in  equal  degree  are  entitled,  share  and  share  alike,  to 
the  residue  of  the  fund  in  controversy,  after  deducting  therefrom  the  costs 
and  reasonable  expenses  of  the  plaintiff  in  this  suit ;  and  they  may  have  a 
reference  to  ascertain  the  balance  coming  to  them  respectively.  The 
plaintiff's  costs  and  expenses  to  be  paid  out  of  this  fund. 

That  the  other  parties  pay  their  own  costs.  Ruff's  to  be  allowed  him 
out  of  his  intestate's  estate,  if  it  extend  so  far. 

The  defendant,  RufF,  now  moved  to  reverse  this  decree,  on  the  grounds  : 

1.  Because  the  limitation  over  to  the  next  of  kin  is  too  remote,  and 
the  estate  vested  absolutely  in  Samuel  Neely.     Or, 

2.  The  limitation  being  too  remote,  the  estate  reverted  to  the  right 
heirs  of  George  Neely,  of  whom  the  defendants'  intestate  was  one,  and 
entitled  to  two-thirds  thereof,  and  the  Chancellor  should  have  decreed 
accordingly.     Failing  on  these  grounds,  he  will  insist — 

3.  That  the  Chancellor  should  have  decreed  to  him  the  interest  for  the 
whole  year  in  which  his  intestate  died. 

Summer,  for  the  appellant,  in  support  of  these  grounds,  cited  Butter- 
field  V.  Butterfield,  1  Yes.  sen.  153-4;  Fearne,  461-4-5;  *Earl  pj^^ 
of  Chatham's  case,  2  Bro.  Ch.  Rep.  33,  127  :  Robertson  v.  Fitz-  L 
herbert,  Fearne,  480-1 ;  1  Cond.  Eng.  Ch.  Rep.  547  ;  5  lb.  42 ;  Bell 
V.  Pritchard,  1  Russ.  Ch.  Rep.  213;  Forth  v.  Chapman,  1  P.  W.  693; 
Adams  v.  Chaplin,  1  Hill,  Ch.  265. 

Fair  &  J.  J.  Caldivell,  contra,  cited  Fearne  on  Ex.  Dev.  Ch.  3,  §  9, 
12,  §  11,  45-G-8.     Cordes  v.  Ardriau,  1  Hill  Ch.  154. 


116  SOUTH   CAROLINA   EQUITY   REPORTS.  [*144 

Harper,  J.  We  concur  entirely  with  the  Chancellor  on  both  the 
points  involved  in  the  case.  Fearne,  in  his  treatise  on  contingent  remain- 
ders and  executory  devises,  471,  says  what  has  been  so  often  repeated, 
that  "  with  respect  to  executory  devises  of  terms  of  years,  or  other  per- 
sonal estates,  the  Court  of  Chancery  has  very  much  inclined  to  lay  hold 
of  any  word  in  the  will  to  tie  up  the  generality  of  the  expression  of  dying 
without  issue,  and  confine  it  to  dying  without  issue  living  at  the  time  of 
the  person's  decease." 

Such  is  the  case  of  Forth  v.  Chapman,  and  others,  where  property  is 
given  to  one  and  his  issue,  and  limited  over  in  the  event  of  the  legatee's 
dying  without  leaving  issue.  But  surely  the  words  are  stronger  in  the 
present  case,  where  the  direction  is  explicit  that  the  property  shall  be 
divided,  in  default  of  issue,  at  the  death  of  the  legatee  for  life.  They  are 
stronger  than  in  the  case  of  Nichols  v.  Hooper,  1  P.  W.  198,  quoted  by 
Fearne,  at  the  page  before' referred  to,  where  the  bequest  was  of  £100, 
if  the  legatee  should  die  without  issue,  to  be  paid  within  six  months  after 
the  death;  or  in  Pinbury  v.  Elkin,  1  P.  W.  563,  where  the  bequest  was, 
if  the  wife  should  die  without  issue  by  the  testator,  then  after  her  decease 
to  the  testator's  brother.  The  words  "then  after,"  were  taken  to  mean 
immediately  after,  and  consequently  to  restrain  the  dying  without  issue 
to  the  time  of  the  death.  The  case  also  might  come  within  the  reason  of 
the  decision  in  Keily  v.  Fowler,  Fearne,  482,  there  being  a  personal  trust 
to  the  executors  to  retain  the  fund  and  pay  over  the  interest  during  the 
son's  life,  and  then  to  divide  the  fund. 

We  agree  also  with  the  Chancellor  in  respect  to  the  apportionment  of  the 
interest ;  and  such,  I  believe,  was  the  common  rule,  independently  of  the 
decision  referred  to  by  the  Chancellor.  The  cases  in  which  it  was  said 
that  there  should  be  no  apportionment  between  the  tenant  for  life  and  the 
remainder- man,  were  those  of  rent,  payable  on  certain  days,  Jenner  v. 
Morgan,  1  P.  W.  392,  which  *was  remedied  by  statute  11  Geo.  2, 
C.  19  ;  that  of  money  in  the  public  funds,  on  which  the  dividends 
are  payable  on  certain  days,  Rashleigh  v.  Masters,  3  Br.  Ch,  Ca.  99;  and 
that  of  annuities.  Pearly  v.  Smith,  3  Atk.  260.  But,  as  is  said  in  the 
ease  last  referred  to,  interest  is  regarded  as  accruing  from  day  to  day, 
and  therefore  apportioned.  Edwards  v.  Countess  of  Warwick  ;  Wilson  v. 
Harman,  2  Yes.  67  ;  2  P.  W.  176.  And  this  was  done  where  the  interest 
was  reserved  on  a  bond  by  half-yearly  payments.  So,  where  under  a 
marriage  settlement,  a  certain  yearly  sum  was  to  be  paid  on  certain  days 
half  yearly,  for  maintenance,  this  was  apportioned,  maintenance  being 
favored.  In  the  case  before  us,  the  interest  is  directed  to  be  paid  annu- 
ally, or  as  soon  as  collected,  and  plainly  for  the  son's  maintenance. 

Decree  affirmed. 

JOHNSTON,  J.,  and  O'Neall,  J.,  concurred. 


*145] 


*145]  COLUMBIA,    JANUARY,    1835.  117 

James  Jordan  vs.  James  Hunt. 

Mode  of  stating  accounts  against  trustees.  [*145] 

Spartanburgh. — June,  1834. 

Bill  by  a  ward  against  his  guardian  for  an  account.  The  appeal  was 
from  the  decision  of  Chancellor  De  Saussure  on  the  Commissioner's 
report,  as  to  the  mode  of  stating  the  account. 

O'Xeall,  J.  In  charging  an  executor,  administrator,  guardian  or 
trustee  with  interest,  it  is  to  be  charged  on  annual  balances.  The  mode 
of  making  up  the  account  has  been  repeatedly  explained  ;  but  in  order  to 
guide  the  Commissioner,  I  will,  from  his  own  report,  give  him  a  practical 
application  of  the  rule  laid  down  in  Foot  v.  Van  Ranst,  Jones  v.  West, 
Harper  v.  Addis,  and  Davis  v.  Wright.  (2  Hill,  5G0.) 

I  perceive  throughout  the  report,  that  the  defendant  received  funds  for 
his  ward  in  the  course  of  each  current  year,  and  that  the  Commissioner 
has  charged  him  with  interest  from  the  day  he  received  such  funds  respec- 
tively. According  to  the  cases  which  I  have  cited,  he  is  entitled  to  hold 
a  fund  thus  received  until  the  end  *of  the  year  iu  which  it  was  r^-ijr. 
received,  free  of  interest.  It  is  then  brought  into  the  account,  ■- 
and  whatever  balance  is  in  the  defendant's  hands,  after  deducting  his 
expenditures,  constitutes  an  interest-bearing  fund  for  the  succeeding  year, 
the  interest  of  which  is  to  be  applied  to  the  payment  of  expenditures 
in  it ;  and  if  less  than  them,  the  balance  is  deducted  from  the  principal  : 
if  the  interest,  however,  exceed  the  expenditures,  any  balance  left  is  kept 
in  a  separate  column,  so  as  not  to  be  compounded. 

For  example,  the  defendant,  in  May,  1831,  received  $350  43;  this 
sum  he  was  entitled  to  hold  free  of  interest  until  the  1st  of  January, 
1822  ;  from  it  was  to  be  deducted  his  payments  for  1821,  $23  62,  leaving 
a  balance  of  $326  81,  on  which  interest  is  computed  for  1822,  and 
amounts  to  $22  87,  which  is  to  be  applied  to  the  payment  of  the  expen- 
ditures of  the  ward  which  exceed  the  interest  of  $24  00, — which  is  to  be 
deducted  from  the  principal :  but  in  that  year  the  guardian  received  for 
his  ward  $119  50,  which  is  to  be  brought  into  the  account  at  the  end  of 
the  year,  and  being  added  to  the  balance  of  1821,  $326  81,  makes  an 
aggregate  of  the  ward's  funds  in  1822,  of  $446  31,  from  which  is  to  be 
deducted  the  balance  of  the  expenditures  for  1822,  after  extinguishing 
the  current  interest,  $24  00,  leaving  a  balance  of  $422  31,  on  which 
interest  is  to  be  computed  for  1823.  The  same  mode  of  making  up  the 
accounts  can  be  carried  on  through  all  the  succeeding  years. 

The  Chancellor's  decree  with  these  explanations,  is  affirmed. 

Johnson,  J.,  and  Harper,  J.,  concurred. 
Henry,  for  the  appellant. 
Bobo,  contra. 

Vol.  I.— 31 


*147] 


118  SOUTH    CAROLINA    EQUITY    REPORTS.  [*146 


John  Chesnut  and  Wife,  and  others,  vs.  James  Strong  and  Robert 
Strong,  Executors  of  John  Maybin. 

Parol  evidence  admissible  to  rebut  an  equity  against  executions  arising  out  of  their 
obligations  to  vest  funds  so  as  to  make  interest.  (See  S.  C.  1  Hill  Ch.  122.) 
[*149] 

Where  an  executor  is  excused  from  making  interest,  or  permitted  to  retain  funds  in 
his  hands  without  being  charged  with  interest,  generally  the  burden  is  cast  on 
the  other  side  to  show  that  he  has  made  interest  or  used  the  funds  himself;  in 
such  cases,  it  seems  that  the  answer  of  the  executor  should  deny  that  he  has 
made  interest  or  used  the  funds.  [*150] 

In  the  absence  of  proof,  the  legal  presumption  is  that  the  notes  given  to  the  execu- 
tor at  his  sale,  were  paid  at  maturity.  [*151] 

Pending  suit  against  him,  the  executor,  after  tender  to  one  of  the  legatees,  deposited 
the  amount  due  with  the  Commissioner,  with  the  instructions  not  to  pay  it  over; 
the  legatee  afterwards  demanded  it: — Held,  that  he  was  entitled  to  interest  from 
the  time  of  demand.  [*151] 

Bill  by  legatees  against  executors  for  an  account.  This  case  was 
brought  before  the  Court  of  Appeals  in  January,  1833,  (1  Hill  Ch.  122,) 
and  the  Court  then  determined  that  parol  evidence  was  admissible,  to 
"show  that  the  executors  retained  the  legacies  in  *their  hands 
without  making  interest,  in  consequence  of  an  agreement  or  under- 
standing with  the  testator,  that  they  should  not  be  bound  to  invest  the 
fund  or  make  interest,  nor  be  chargeable  with  interest  upon  failure  so  to 
do,  and  that  they  accepted  the  trust  on  that  condition,"  and  ordered  the 
case  to  be  remanded  to  the  Circuit  Court,  for  the  purpose  of  Veceiving 
the  evidence  and  being  heard  and  determined 

The  case  came  on  before  Chancellor  Johnston,  July  1833,  who 
received  the  parol  evidence,  though  against  his  own  opinion  of  its  admis- 
sibility, and  besides  he  regarded  it  as  unnecessary,  the  words  of  the  will, 
in  his  opinion,  amounting  to  a  bequest  of  the  interest  to  the  executors. 
He  dismissed  the  bill  with  costs,  as  to  the  plaintiffs,  (Thompson  and 
vrife,)  who  had  given  a  receipt  in  full  for  their  share  ;  and  decreed  that 
the  defendant,  James  Strong,  (Robert  Strong  having  died  pending  the 
bill,)  account  before  the  Commissioner  touching  the  legacies  of  the  other 
plaintiffs,  together  with  their  aliquot  shares  of  the  interest  actually  made 
thereon,  proper  credits  to  be  allowed;  and  the  consideration  of  the 
remaining  costs,  and  all  other  equities,  to  await  the  coming  in^of  the 
Commissioner's  report. 

The  Commissioner  accordingly  made  up  bis  report,  in  which  he  sets 
forth  and  examines  the  evidence,  and  then  gives  a  statement  of  the 
amount  of  the  estate,  and  of  the  interest  proved  to  have  been  received  by 
the  executors.  The  result  is,  that  there  is  a  balance  due  to  Chesnut  and 
wife  of  $33  50,  and  to  Garten  and  wife,  $1066  25,  whichsums  he  recom- 
mends to  be  paid  to  them  respectively. 

The  case  came  up  before  Chancellor  De  Saussure  at  Chester,  July 
1834,  on  exceptions  to  this  report.  Of  the  numerous  exceptions,  it  is 
necessary  to  notice  only  the  following : 

The  plaintiffs  excepted : — Because  interest  should  have  been  charged 
on  the  whole  estate,  except  so  much  as  the  defendant  showed  he  had  not 
made  interest  on,  and  the  onus  of  proof  is  put  on  the  defendant. 

On  which  the  Chancellor  remarks — "To  support  this  exception,  I 


147] 


COLUMBIA,   JANUARY,    1835.  119 


suppose  that  part  of  the  evidence  is  relied  on,  whieli  states  that  several 
persons  who  wislied  to  borrow  money  of  the  estate,  were  informed  by  the 
executors  that  they  were  not  in  funds  to  loan.  This  I  consider  too  loose 
and  inconclusive  to  establish  the  fact  required  to  be  proved,  that  the 
whole  estate  was  out  at  interest.  *Thcse  loose  declarations  mip;ht  p^.  ^ 
have  been  the  resource  of  the  executors  to  repel  the  importunities  L 
of  persons  anxious  to  borrow ;  or  they  might  at  that  time  have  loaned  the 
money  out  to  confidential  friends  without  security  or  interest,  knowing  that 
at  all  events  they  would  be  liable  for  the  principal.  By  the  decretal  order, 
it  would  seem,  too,  as  if  the  oiius  of  proof  is  put  upon  the  plaintiffs,  to 
show  what  interest  had  been  actually  made ;  which  has  not  been  done 
to  the  extent  claimed.  It  does  not  therefore  appear  to  me  that  the 
Commissioner  has  done  wrong.     This  exception  is  therefore  overruled." 

Another  exception  on  the  part  of  the  plaintiff  was, — Because  the  Com- 
missioner has  not  allowed  interest  on  the  share  of  Garten  and  wife  from 
1830,  when  the  demand  was  made,  nor  even  since  the  filing  of  the  bill; 
although  the  defendants  refused  to  let  the  plaintiffs  have  the  money  which 
was  left  with  the  Commissioner.  On  which  the  Chancellor  says:  "At 
the  time  of  the  legatee's  (Mrs.  Garten)  coming  of  age,  the  executors 
were  bound  to  pay  the  legacy.  At  all  events,  they  should  have  been 
ready  when  the  demand  was  made,  and  still  more  when  the  bill  was  filed. 
The  very  ground  of  resistance  to  paying  interest  was,  that  they  were  at 
liberty  to  keep  the  money  in  their  hands  until  the  legatees  came  of  age. 
It  must  therefore  be  assumed  that  they  were  in  funds  to  pay,  (except  as 
to  such  of  the  funds  as  were  proved  to  have  been  loaned  out  and  bore 
interest,)  and  being  so  bound  and  not  paying,  the  executors  are  charge- 
able with  interest  at  least  from  the  time  of  the  demand.  As  to  the  pay- 
ment into  the  hands  of  the  Commissioner,  that  made  no  difference ;  for 
the  executors  forbade  the  payment  of  the  money  over  to  Garten  and  wife; 
so  that  the  money  might  as  well  have  been  kept  in  their  hands.  This 
exception  must  therefore  be  sustained,  and  the  interest  allowed  from  the 
time  of  demand;  and  if  that  is  not  proved,  from  the  filing  of  the  bill." 

Both  parties  appealed.  The  plaintiffs,  because  the  Chancellor  over- 
ruled the  first  of  these  exceptions,  and  the  defendant,  because  he  sustained 
the  last. 

Williams,  for  the  plaintiffs. 

Clarke  and  M^Dowall,  for  the  defendant. 

So  much  only  of  the  opinion  of  this  Court  is  given  as  relates  to  the 
foregoing  questions. 

*Harper,  J. .  The  principal  question  is  that  made  on  part  of  r*j^g 
the  plaintiffs,  respecting  the  liability  of  the  defendant  generally  for  •- 
interest  on  the  amount  of  the  estate  in  his  hands.  The  former  decree  of 
this  Court  established  that  the  defendants  might  exempt  themselves  from 
liability  to  pay  interest  on  the  funds  in  their  hands,  by  showing  that  they 
had  kept  them  locked  up  without  making  interest,  and  that  this  was  in 
consequence  of  an  agreement  or  understanding  with  the  testator  that  they 
might  so  retain  them,  and  should  not  be  responsible  for  interest.  I  had 
thought  it  sufficiently  explained  that  parol  testimony  was  not  to  be 
admitted  to  contradict,  explain,  or  in  any  degree  control  the  operation  ol 


120  SOUTH    CAROLINA   EQUITY    REPORTS.  [*149 

the  will,  but  to  rebut  an  equity  attaching:  on  the  executors,  not  by  any 
direction  of  the  will,  but  by  the  course  and  practice  of  this  Court,  impos- 
ing on  them  an  ol)ligation  to  vest  the  funds  so  as  to  make  interest  for  the 
legatees.  If  interest  were  made  or  charged,  it  must  go  as  an  accessary 
of  the  principal,  and  its  disposition  must  be  determined  by  the  will 
alone.  Chancellor  Johnston,  on  the  hearing  of  the  case  before  him, 
received  the  parol  testimony,  and  has  reported  his  opinion  of  the  effect  of 
it — that  "it  shows  clearly  an  understanding  and  agreement  between  the 
testator  and  the  executors,  that  the  latter  were  not  to  be  charged  with 
interest."  The  Chancellor  comes  to  the  conclusion,  however,  that  the 
words  of  the  will  alone  are  sufficient  to  excuse  the  executors  from  the 
making  of  interest.  I  do  not  think  it  necessary  to  enter  upon  a  re- 
examination of  this  part  of  the  case,  as  we  concur  with  the  Chancellor 
upon  the  effect  of  the  testimony. 

The  Chancellor  adds:  "I  think  the  weight  of  the  testimony  goes  to 
establish  more:  that  the  executors  were  to  be  at  liberty  to  make  such 
profit  as  they  could  by  the  use  or  loan  of  the  money;"  and  upon  this  it  is 
argued,  that  the  effect  of  the  testimony  is  not  to  show  that  the  executors 
were  excused  from  making  interest,  but  that  they  were  to  take  it  for 
themselves;  for  which  purpose  we  have  determined  the  testimony  not  to 
be  admissible.  But  if  the  understanding  was  that  they  might  use  the 
fund  without  accounting  for  interest,  it  involves,  a  fortiori,  that  they 
might  retain  it  unemployed  in  their  hands  without  being  so  accountable. 
And  if  they  did  so  retain  it,  from  the  belief  that  interest,  if  made,  would 
be  their  own,  this  is  a  no  less  valid  excuse. 

The  chief  argument  on  the  part  of  the  plaintiffs  is,  that  the  burden  of 
*1501  PJ'oof  ^^^s  on  the  defendant,  to  show  that  he  did  retain  the  *fund 
-'  unemployed  in  his  hands  ;  that  such  are  the  terms  of  the  decree  of 
this  Court,  and  that  he  has  failed  to  do  this  ;  on  the  contrary,  it  appears 
that  he  did,  in  some  instances,  and  for  aught  that  appears,  may  have  done 
so  (with  a  trifling  exception)  on  the  whole  estate.  It  may  be  remarked, 
that  if  the  defendant  did  retain  the  money  in  his  actual  possession,  this 
was  a  fact  not  strictly  susceptible  of  proof.  It  would  involve  the  proof 
of  the  negative — that  at  no  time  had  he  lent  or  otherwise  disposed  of  the 
money.  If  he  had  lived  near  a  Bank,  it  might  be  said  that  he  could 
have  made  a  deposit  of  the  money,  and  this  might  have  been  proved. 
But  this  is  not  the  ordinary  course  of  dealing  of  persons  living  in  the 
country  at  a  distance  from  Banks.  I  should  be  at  a  loss  for  the  au- 
thority on  which  I  would  say  that  the  defendant  was  bound  to  deposit  in 
Bank.  In  the  various  cases  in  which  an  executor  has  been  held  excused 
from  making  interest,  on  account  of  the  exigencies  of  the  estate  requiring 
him  to  retain  funds  in  his  hands,  (as  to  meet  probable  demands,)  which  I 
have  lately  had  occasion  to  examine,  proof  was  not  required  that  the 
funds  were  deposited  or  actually  retained.  Upon  its  being  shown  that 
the  exigencies  did  in  fact  exist,  it  seems  to  have  been  taken  for  granted 
on  the  part  of  the  executor  that  he  did  retain -the  funds  to  meet  those 
exigencies,  and  the  burden  was  thrown  on  the  other  side,  to  show  that 
the  executor  did  make  use  of  the  funds  himself,  or  otherwise  dispose  of 
them.  Perhaps  it  would  have  been  better  that  a  stricter  rule  had  been 
adopted,  but  I  am  not  at  liberty  to  make  one.  If  the  executor  had  not 
the  funds  ready  when  properly  called  upon  for  them,  this  might  be  evi- 


*150] 


COLUMBIA,   JANUARY,    1835.  121 


dence  cnougii  that  he  did  use  the  funds  himself;  liut  in  this  case,  the 
defendant  seems  to  have  been  always  ready  when  properly  called  upon. 
When  the  want  of  notice  is  relied  upon  as  a  defence,  the  defendant  is  re- 
quired to  deny  it  explicitly  on  oath,  and  then,  as  this  is  a  negative  not 
strictly  susceptible  of  proof,  the  denial  is  held  sufficient  to  throw  on  the 
other  party  the  burden  of  proving  the  notice.  So,  by  parity  of  reason- 
ing, I  should  say  that  the  party  alleging  he  has  not  made  interest,  should 
in  like  manner  deny  in  his  answer.  If  the  answer  be  clear,  consistent 
and  explicit,  with  nothing  to  contradict  or  discredit  it,  then  the  burden 
of  proof  must  rest  on  the  plaintift".  I  think  the  answer  sufficiently  clear 
and  positive  in  the  denial  of  having  received  interest  beyond  a  certain 
specified  amount,  nor  do  I  perceive  any  thing  in  the  whole  case  to  dis- 
credit the  answer.  To  a  certain  extent  *it  is  supported.  The  r*i'i 
defendant  is  shown,  in  one  instance,  to  have  lent  the  money  of  the  ^ 
estate  without  interest.  One  witness  who  states  that  he  paid  him  interest, 
states  also  that  he  accepted  it  unwillingly,  and  did  not  receive  the  full 
amount  of  interest.  The  witness,  John  Strong,  the  brother  of  the  exe- 
cutors, and  who  maybe  supposed  to  have  had  an  opportunity  of  knowing, 
states  that  "  the  executors  generally  had  the  money  in  hand."  Further 
proof  than  this  it  vpould  be  hardly  practicable  to  make.  But  the  effect  of 
the  testimony  was  rather  for  the  determination  of  the  Chancellor  than  for 
this  Court.     These  views  dispose  of  the  plaintiff's  ground  of  appeal. 

It  is  argued  that  the  notes  given  for  the  property  of  the  estate  when 
sold,  would  bear  interest  from  the  expiration  of  the  year's  credit ;  that 
we  cannot  suppose  them  paid  at  the  moment  of  maturity,  and  if  not,  that 
the  executors  must  in  fact  have  received  interest.  The  executors  charged 
themselves  with  the  amount  of  the  sale  bill,  as  of  the  time  it  became  due, 
and  this  in  conformity  to  the  practice  of  this  Court.  If  this  practice  be 
correct,  then  the  legal  presumption  is,  that  such  notes  are  paid  at  ma- 
turity, and  it  is  for  those  who  allege  otherwise  to  furnish  the  proof.  It 
would  be  difficult  to  imagine  any  other  rule.  Such  proof  seems  to  have 
been  furnished  to  a  certain  extent  in  the  instance  of  M'Clarkiu,  and  the 
defendant  is  charged  accordingly  ;  but  in  another  instance,  a  large  pay- 
ment seems  to  have  been  made  before  it  was  due.  If  executors  are 
subject  to  the  disadvantages  which  may  result  from  their  being  charged 
in  this  manner,  they  ought,  on  the  other  hand,  to  have  the  benefits  which 
may  result  from  it. 

It  was  the  fault  of  the  plaintiff,  Garten,  that  he  did  not  receive  his 
legacy  when  it  became  due.  The  defendant  offered  to  pay  him  the 
principal,  and  to  account  on  oath  for  all  the  interest  he  had  actually 
made,  and  we  have  determined  that  this  is  all  he  was  entitled  to.  He 
was  offered  more  than  has  now  been  established  in  his  favor,  defendant 
offering  to  give  up  his  commissions.  But  it  was  admitted  in  argument 
by  the  defendant's  counsel,  that  some  time  in  1833  or  1834,  Garten,  re- 
penting his  refusal,  demanded  the  amount  which  had  been  deposited  with 
the  Commissioner  in  Equity,  and  that  the  defendant  then  refused  to  let 
him  have  it.  Defendant  then  put  himself  in  the  wrong  by  detaining  what 
he  admitted  to  be  due,  and  from  that  time  we  think  he  must  pay  interest. 
*The  precise  date  of  this  demand  was  not  fixed,  but  it  may  be  r*i  co 
ascertained  by  the  Commissioner.  '- 

Decree  accordingly. 

Johnson,  J.,  and  O'Neall,  J.,  concurred. 


122  SOUTH   CAROLINA   EQUITY    REPORTS.  [*151 


William  T.  Spann  &  Tyre  Jennings,  v.  Tyre  J.  Spann. 

Decretal  order?,  ■when  tbey  may  be  suspended.  [*153] 

Although  a  Chancellor  has  no  authority  to  set  aside  a  previous  order  of  Court,  final 
in  its  nature,  he  may,  eitlier  in  the  Court  or  at  chambers,  suspend  its  execution, 
on  the  ground  of  subsequent  matter  that  would  render  its  execution  oppressive 
or  iniquitous.  ["*15G] 

Sumter. — 

This  bill  was  filed  for  an  account  by  the  plaintiffs,  as  late  copartners 
against  the  third  partner,  and  for  the  appointment  of  a  receiver  in  place 
of  defendant,  who,  by  the  copartnership  concern,  was  appointed  agent 
to  settle  the  affairs  of  the  firm.  The  Court  refused  to  substitute  a  re- 
ceiver in  place  of  the  defendant.  An  account  was  taken,  and  at  Feb. 
Terra,  1833,  a  report  was  made  by  the  Commissioner,  of  the  several  sums 
in  which  each  of  the  copartners  was  individually  indebted  to  the  concern, 
and  a  statement  of  the  demands  due  by  the  concern.  The  report  was 
finally  confirmed.  At  February  Term,  1834,  on  motion  of  the  plaintiffs' 
solicitor,  Chancellor  De  Saussure   granted  the  following    order,   to  wit : 

"  On  motion  it  is  ordered  that  each  of  the  copartners  in  this  case  do 
pay  up  into  the  hands  of  the  Commissioner  the  amounts  reported  to  be 
due  by  each  of  them  respectively.  And  that  the  Commissioner  do  apply 
the  amounts  when  received,  first,  to  the  payment  of  the  costs  of  this  suit, 
and  secondly,  to  the  payment  of  the  debts  due  by  the  copartnership  as 
reported  by  him  ;  and  that  the  Commissioner  do  issue  executions,  either 
against  the  persons  or  property  of  the  said  copartners,  to  compel  the 
payment  of  the  amounts  due  by  them.  Copartnership  property  in  the 
hands  of  either  of  the  copartners,  or  their  agents,  to  be  charged  with 
the  debts. 

"It  is  further  ordered  that  the  copartnership  property  in  the  hands  of 
either  of  the  copartners  be  produced  and  delivered  to  the  Commissioner, 
to  be  by  him  sold  for  payment  of  the  debts  of  the  copartnership,  and 
that  he  do  sell  the  same  on  sale,  day  in  April  next." 
^■|ro-|  *From  this  order  there  was  an  appeal.  In  conformity  to  the 
-'  order,  attachments  were  lodged  with  the  sheriff  against  each  of 
the  copartners  (separately)  for  the  sums  as  established  by  the  report  to 
be  due  by  each.  William  T.  Spann  was  arrested  and  held  in  custody  by 
the  sheriff.  On  the  5th  August,  1834,  his  honor  Chancellor  De  Saus- 
sure, at  chambers,  on  the  application  of  William  T.  Spann  and  his 
solicitor,  suspended  the  attachment  against  said  William  T.  Spann,  and 
directed  him  to  be  discharged  from  custody  by  the  following  order,  to 
wit: 

"  William  T.  Spann  &  T.  Jennings  v.  Tyre  J.  Spann.  The  motion 
before  the  Court  is  to  set  aside  an  attachment  issued  in  this  case  against 
William  T.  Spann  ;  and  also  to  have  it  referred  to  the  Commissioner  to 
ascertain  what  sums  of  money  the  said  William  T.  Spann  has  paid  to 
the  debts  of  the  copartnership,  and  that  he  be  allowed  credit  for  what  he 
has  already  paid,  or  may  hereafter  pay  to  the  debts  of  the  copartnership, 
on  the  amount  reported  against  him  in  this  case.  The  attachment  in 
question  was  issued  by  the  Commissioner  under  a  decretal  order  made  in 
this  case  in  February,  1834,  at  the  instance  of  the  plaintiffs,  and  by  con- 


*153]  COLUMBIA,    JANUARY,    1835.  123 

sent  of  parties.  The  order  directed  that  eacli  of  tlie  copartners  in  this 
case  do  pay  up  into  tlie  hands  of  the  Commissioner  tlie  amonnts  reported 
to  be  due  by  each  of  them  respectively,  and  that  the  Commissioner  do  ap- 
ply the  amonnts  when  received — first,  to  the  payment  of  the  debts  due  by 
the  'copartnership  as  reported  by  him  ;  that  the  Commissioner  do  issue 
execution,  either  against  the  persons  or  property  of  the  said  copartners,  to 
compel  the  payment  of  the  amount  due  by  their  copartnership  pro])crty, 
in  the  hands  of  either  of  the  copartners  or  their  agents,  to  be  charged 
with  the  debts  ;  and  that  the  copartnership  property  in  the  hands  of 
either  of  the  copartners  be  produced  and  delivered  to  the  Commissioner, 
to  be  by  him  sold  for  payment  of  debts  of  the  copartnership,  and  that 
he  do  sell  the  same  on  sale  day  in  April  then  next  ensuing. 

"  In  pursuance  of  that  decretal  order,  made  at  the  instance  of  the 
parties  themselves,  the  attachment  was  issued  by  the  Commissioner,  and 
the  body  of  William  T.  Spann  has  been  taken  and  is  now  in  custody. 
The  first  object  of  the  motion  is  to  be  relieved  from  the  attachment.  It 
appears  that  the  creditors  of  the  parties  in  question  are  not  parties  in 
the  suit,  and  did  not  move  for  the  attachment ;  but  they  have  judgments 
and  executions  against  them  individually  and  as  copartners.  Some  of  the 
copartnership  debts  *stood  in  the  name  of  the  individual  co-  r^irA 
partners,  as  appears  by  the  report  of  the  Commissioner  in  Feb-  '- 
ruary,  1833.  These  executions  have  been  enforced  in  part  against  the 
property  of  William  T.  Spann,  and  steps  are  taking  to  give  them  further 
effect  against  the  individual  i)roperty  of  said  William  T.  Spann.  It  ap- 
pears further,  that  Tyre  J.  Spann,  the  defendant  in  this  suit,  has  left  the 
State,  and  carried  off  great  part  of  his  property,  so  that  his  person  and 
his  property  are  out  of  the  reach  of  the  process  of  the  Court.  The 
motion  to  dissolve  the  attachment  and  to  discharge  the  defendant,  Wil- 
liam T.  Spann,  from  custody,  is  opposed  on  the  grounds  that  this  cannot 
be  done  at  chambers,  or  even  by  a  single  judge,  as  it  is,  in  fact,  an  appeal 
from  the  decree  of  the  Circuit  Court,  which  can  be  made  only  to  the 
Court  of  Appeals.  This,  however,  is  not  a  correct  view  of  the  case. 
The  motion  does  not  seek  to  set  aside  the  decree  of  the  Court  made  by 
consent  of  the  parties,  but  to  discharge  the  defendant  from  the  arrest,  on 
the  grounds  which  have  arisen  since  the  order. 

"  The  creditors  not  being  parties  to  the  suit  or  the  order  made,  cannot 
oppose  it.  By  whom  is  it  then  opposed  ?  By  the  defendant.  Tyre  J. 
Spann,  the  copartner  of  the  plaintitf,  William  T.  Spann.  With  what 
grace  a  brother  resists  the  enlargement  of  a  brother  from  prison  is  not 
for  the  Court  to  inquire.  But  the  inquiry  is  proper.  What  did  these 
persons  intend  by  consenting  to  a  decretal  order  that  execution  might  be 
issued  against  either  of  them,  no  creditors  being  in  Court  to  require  the 
same? 

"  The  bill  was  for  the  settlement  of  accounts  between  these  copartners, 
who  had  lost  all  confidence  in  each  other,  and  were  willing  to  give  a  con- 
trol to  each  other  over  their  persons  and  effects,  to  compel  a  just  settle- 
ment with  their  creditors  and  each  other.  It  was  a  mutual  agreement  to 
operate  on  each  of  them.  This  mutuality  is  defeated  by  the  conduct  of 
the  defendant,  T.  J.  Spann. 

"  He  has  gone  beyond  the  jurisdiction  of  the  Court,  and  cannot  be 
made  liable  personally  to  the  order  of  the  Court  to  which  he  con.sented. 
Yet  he  requires,  and  he  only   (for  I  repeat,   that  the  creditors  are  not 


124  SOUTH    CAROLINA    EQUITY   REPORTS.  [*154 

parties  to  this  suit,  or  to  the  decretal  order,)  that  his  copartner  should 
l)e  held  in  custody  whilst  he  evades  the  effect  of  the  order  on  himself. 
This  cannot  be  allowed.  It  is  therefore  ordered  that  the  order  for  the 
attachment  be  rescinded,  and  the  party,  William  T.  Spann,  be  discharged 
from  custody.  The  creditors,  of  course,  are  at  liberty  to  act  on  Iheir 
executions. 

^^rr-i  *"  This  is  the  only  part  of  the  case  before  me;  consequently 
-^  the  only  part  requiring  my  decision.  But  it  is  proper  to  grant  the 
other  part  of  the  motion.  It  is  therefore  ordered,  that  the  Commissioner 
do  examine  and  report  what  sums  of  money  the  said  Wm.  T.  Spann  has 
paid  to  the  debts  of  the  copartnership,  and  what  amounts  have  been  paid 
by  the  other  copartners  ;  and  that  each  of  them  be  allowed  credit  for 
what  he  has  paid,  or  may  hereafter  y)ay  to  the  debts  of  the  copartnership, 
on  the  amount  reported  against  him  in  this  case." 

A  notice  of  appeal  from  this  order,  by  the  defendant's  solicitor,  was 
immediately  served  on  Wm.  T,  Spann  and  the  solicitor  of  the  plaintiffs, 
on  the  Chancellor  and  Sheriff,  on  the  grounds  : 

1.  That  the  Chancellor  had  no  authority  at  chambers,  to  rescind  an 
order  made  during  Terra  time. 

2.  That  his  Honor  erred  in  deciding  that  the  application  to  discharge 
the  party  from  arrest  proceeded  upon  grounds  which  have  arisen  since 
the  order,  of  February,  1834  ;  as,  in  fact,  no  such  grounds  have  so  since 
arisen. 

3.  That  the  fact  of  T.  J.  Spann,  who  was  bound  in  a  "  ne  exeat 
bond,"  having  left  the  State,  did  not  appear  on  the  application  before  the 
Chancellor ,  and  if  it  had  appeared,  was  no  ground  for  the  recisiou  of 
the  order. 

4.  That  by  the  order  of  February  Term,  1834,  made  on  application  of 
Wm.  T.  Spann,  the  copartners  themselves  have  assented  that  the  credi- 
tors reported  as  such,  should  have  the  remedy  of  attachment  for  their 
demands,  and  the  right  to  enforce  it  as  against  the  copartners — the 
Chancellor  being  mistaken  in  the  fact  that  the  creditors  have  judgment 
and  executions  against  the  parties  individually  and  as  copartners. 

5.  That  by  the  order  of  Feb.  1834,  the  Commissioner  was  authorized 
to  issue  the  attachment  for  the  costs  of  the  case. 

6.  That  the  copartnership  concern  had  a  right,  under  the  order  of 
Feljruary,  1834,  to  the  attachment  for  the  amount  due  by  said  Wm.  T, 
Spann,  to  said  concern,  in  said  case.  And  no  conduct  of  either  of  the 
copartners,  either  before  or  since  the  order,  (even  if  appearing,)  could 
give  the  Chancellor  the  right  at  chambers  to  reverse  the  order. 

On  the  21st  August,  1834,  Chancellor  De  Saussure  made  the 
*1561  *fo^'owing  additional  order,  on  application  of  said  Wm.  T.  Spann 
-'  and  his  solicitor,  to  wit : 

"Wm.  T.  Spann  and  T,  Jennings  ;;.  T.  J,  Spann — motion  for  order 
on  the  Sheriff  of  Sumter  district,  to  discharge  Wm.  T.  Spann  from 
custody." 

"On  motion  of  Mr.  Mayrant,  solicitor  for  the  plaintiff,  Wm.  T.  Spann, 
after  hearing  the  argument,  it  is  ordered  that  the  said  sheriff  do  forthwith 
discharge  the  said  Wm.  T.  Spann  from  custody,  in  pursuance  of  the 
former  order  in  this  case,  on  the  5th  August  instant,  notwithstanding  the 
notice  of  appeal  from  that  order,  given  by  said  Tyre  J.  Spann  ;  provided, 


*15G]  COLUMBIA,   JANUARY,    1835.  125 

that  before  such  discharge  be  made,  the  said  Wra.  T.  Spann  do  enter 
into  bond  with  good  security,  in  the  penalty  of  three  thousand  dollars, 
payable  to  the  Commissioner  of  the  Court,  conditioned  that  he  will  pay 
to  the  Commissioner,  or  to  the  creditors,  his  share  of  the  debts  of  the 
copartnership,  as  soon  as  the  same  is  ascertained  and  reported  by  the 
Commissioner,  and  that  this  condition  be  regarded  as  a  part  of  the  said 
order  of  the  5th  August,  instant." 

Moses,  the  defendant's  solicitor,  in  conformity  to  the  notice  served  on 
the  Chancellor  and  the  parties,  now  submitted  his  motion  to  the  Ajjpeal 
Court  to  reverse  the  said  order  made  by  the  Chancellor,  on  the  grounds 
therein  stated. 

Johnson,  J.  The  order  of  the  21st  February,  1834,  was  made  on  the 
application  of  the  plaintiff's  themselves,  and  is  in  its  nature  final,  and  not 
interlocutory.  It  awards  execution  against  the  parties,  and  if  erroneous, 
was  the  subject  of  appeal.  I  am  therefore  clearly  of  opinion  that  the 
Chancellor  had  no  authority  to  set  it  aside,  on  account  of  any  su])posed 
error  in  point  of  fact  or  law.  But  it  is  equally  clear  that  the  Courts, 
both  of  Law  and  Equity,  or  a  Judge  or  Chancellor  at  chambers,  have 
the  power,  and  daily  exercise  it,  of  suspending  the  execution  of  even  final 
process  on  account  of  subsequent  matter  which  would  render  the  execu- 
tion of  it  oppressive  or  iniquitous.  Thus,  when  the  amount  du^  on  a  Ji. 
fa.  or  ca.  sa.  had  been  paid  to  the  plaintiff",  and  satisfaction  not  entered, 
or  where  there  were  mutual  judgments  which  might  be  set  off"  against 
each  other,  and  one  of  the  parties  should  be  taken  in  execution,  in 
these  and  such  like  cases  at  common  law,  it  is  the  daily  practice  to 
obtain  an  order  at  chambers,  in  vacation,  to  stay  the  proceedings  until 
Term  time,  when  the  matters  of  dispute,  *if  there  be  any,  can  be  r*iciT 
determined  according  to  the  forms  of  law.  And  I  would  say,  in  ^ 
general,  that  whenever  subsequent  occurrences  would  render  the  execu- 
tion of  a  judgment  or  order  of  a  Court,  either  of  Law  or  Equity, 
oppressive  or  unjust,  the  execution  of  it  ought  to  be  restrained ;  and  if 
this  should  happen  in  vacation,  it  can  only  be  done  by  an  order  at 
chambers. 

In  the  application  of  this  rule,  it  will  be  necessary  to  advert  particu- 
larly to  the  circumstances  of  the  case.  The  parties  had  been  partners  in 
trade,  and  the  object  of  the  bill  was  for  an  account  and  settlement  of  the 
concern.  A  report  had  been  made  by  which  it  appeared  that  each  of  the 
parties  were  individually  indebted  to  the  concern.  The  debts  of  the 
concern  were  to  be  provided  for  out  of  this  fund,  and  it  was  the  interest 
of  all,  as  well  as  their  duty,  to  make  this  fund  available  as  promptly  as 
possible,  and  hence  the  application  and  order  for  final  process  against 
them  individually,  for  the  sums  severally  due  by  them.  In  this  there  was 
a  perfect  equality  ;  the  parties  and  their  effects  were  in  the  power  of  the 
Court,  and  acceptable  to  its  process,  when  the  order  was  made  ;  but  the 
defendant  aftewards  removed  with  his  property  without  the  reach  of  the 
process  of  the  Court,  and  by  that  act  destroyed  that  equality  of  benefit 
and  of  burthen,  which  was  the  foundation  of  the  order,  and  now  asks, 
through  his  solicitor,  that  it  shall  be  enforced  against  the  plaintiffs.  This 
will  not  be  tolerated. 

It  is  said  that  creditors  are  interested  in  the  execution  of  this  order 


126  SOUTH    CAKOLINA   EQUITY    REPORTS.  {*157 

They  are  not  parties  to  the  bill,  and  cannot  be  heard. — If  there  be  credi- 
tors, the  Courts  of  Justice  are  open  to  them,  and  will  afford  relief  when 
they  apply  for  it.  There  is  certainly  nothing  in  the  order  itself,  nor  in 
the  proceedings,  which  shows  that  it  was  made  at  the  instance  of  the 
creditors,  or  for  their  security,  nor  is  it  pretended  that  tlie  arrest  of  Wm. 
T.  Spann  was  made  at  their  instance. 

The  claims  of  the  officers  of  the  Court  stand  precisely  upon  the  footing 
of  the  claims  of  the  creditors  ;  the  object  of  the  order,  as  before  observed, 
was  intended  solely  for  the  benefit  and  security  of  the  parties  themselves, 
and  not  for  the  officers  of  Court,  and  must  be  governed  by  the  same 
rule.  The  payment  of  the  costs  was  dependent  on  the  payment  of  the 
fund  into  Court ;  and  that  having  been  defeated,  the  payment  of  costs 
must  be  postponed  until  the  final  determination  of  the  case,  or  until  some 
substantive  order  shall  be  made  for  their  payment, 

*15S1       *Upoii  the  whole,  we  think  the  Chancellor  has  put  the  case 
-^  upon  the  true  grounds,  and  concur  with  him  in  opinion. 

Motion  dismissed. 


Michael  Lever  v.  William   Lever,  Executor  of  George  Lever, 

deceased. 

Where  the  items  in  an  account  book  were  read  over  to  the  party  charged,  who 
objected  to  a  few  items  only,  the  book  may  be  received  in  evidence  as  his  admis- 
sion. [*159] 

On  a  bill  for  an  account  against  an  agent,  his  books,  if  the  entries  are  made  in  the 
usual  course  of  business,  are  admissible  against  the  principal;  especially  when 
both  parties  are  dead  and  there  is  strong  corroborating  evidence  of  the  correct- 
ness of  the  books.  [*160] 

Unless  the  books  of  an  agent  purport  to  contain  an  account  of  all  payments  to  and 
for  his  principal,  he  will  not  be  confined  to  them  in  discharging  himself.  [*161] 

Where  one  acted  as  general  agent  in  the  management  of  another's  estate,  with  an 
understanding  that  he  should  receive  all  moneys,  defray  debts  and  expenses,  and 
if  required  before  his  death,  pay  over  the  balance,  and  if  not  so  required,  continue 
to  act  till  his  death,  when  the  unexpended  balance  should  be  paid  over: — Held, 
that  the  agent  is  not  liable  for  interest  until  after  demand ;  nor  would  using  the 
money  make  him  so  liable  unless  he  had  actually  made  interest,  or  failed  to  pay 
the  debts  and  expenses,  to  the  prejudice  of  his  principal.  [*162] 

Where  the  books  of  an  agent  profess  to  contain  an  account  of  all  receipts,  payments 
and  services,  on  account  of  the  agency,  and  are  offered  in  evidence  by  the  agent, 
he  shall  not  be  allowed  any  other  charges  than  those  there  contained.  [*1G3] 

A  private  agent  is  not  entitled  to  commissions  unless  by  contract.  [*166] 

The  bill  in  this  case  was  filed  by  the  plaintiff,  for  an  account  from  the 
estate  of  his  father,  George  Lever,  alleging  that  by  reason  of  the  plain- 
tiff"'s  "  mental  imbecility  and  want  of  education,"  the  said  George  had  for 
many  years  acted  as  his  general  agent  and  trustee — received  large  sums 
of  money  and  the  proceeds  of  his  crops,  for  which  he  had  not  accounted. 

On  appeal  from  the  decree  of  Chancellor  Johnston,  the  Appeal  Court, 
in  January,  1833,  decided  the  points  then  made,  and  directed  issues  at 
law  to  inquire  whether  a  judgment  obtained  by  George  Lever  against 
the  plaintiff  was  founded  on  any  and  what  consideration,  or  was  volun- 
tary ;  and  to  try  the  plea  of  final  account  and  settlement. — (See  1  Hill, 
Ch.  62.) 

On  these  issues  the  jury  found  in  favor  of  the  judgment,  and  against 


*158]  COLUMBIA,    JANUARY,    1835.  127 

the  plea  of  final  account  and  settlement ;  and  thereupon  the  Court  of 
Appeals,  at  May  Terra,  1834,  ordered  a  reference  before  the  Commissioner 
of  Newberry,  "  who  should  examine  and  report  upon  the  accounts 
between  the  parties,  charging  George  Lever  with  all  moneys  by  him 
received  on  account  of  Michael  Lever,  and  which  are  embraced  in  the 
account  sought  by  the  bill  ;  and  crediting  the  said  George  with  such 
sums  as  he  may  have  properly  expended  for  the  said  Michael,  and  also 
with  such  debts  as  the  said  Michael  may  owe  to  the  said  George, 
including  therein  the  judgment  so  found  by  the  jury  to  be  bona  fide  ;  and 
generally  with  all  suitable  and  proper  allowances."  The  case  came  up 
again  before  Chancellor  Johnston,  at  Newberry,  July,  1834,  on  cxcei)tious 
by  both  parties  to  the  Commissioner's  report,  and  he  overruled  all  the 
exceptions  and  confirmed  the  report. 

From  this  decree  both  parties  appealed,  on  the  ground  of  error  in  the 
Chancellor,  in  overruling  the  exceptions  respectively  taken.  *Most  rs^icQ 
of  the  numerous  exceptions  taken  depend  entirely  ou  the  facts.  ^ 
The  following  are  all  which  need  be  noticed  : — 

On  the  part  of  the  plaintiffs — 

3.  That  the  Commissioner  allowed  the  books  of  George  Lever  to  be 
given  in  evidence,  not  only  to  prove  necessaries  furnished  to  the  plaintiff, 
but  cash  advanced  and  spirits  sold. 

7.  That  the  Commissioner,  after  having  received  the  books  of  George 
Lever  to  prove  moneys  advanced  to  the  plaintiff,  ought  not  to  have  per- 
mitted the  defendant  to  have  shown  payments  in  any  other  way. 

By  the  defendant — 

4.  That  the  Commissioner  charged  the  defendant  with  interest  on  the 
moneys  received  from  the  time  at  which  they  were  supposed  to  have 
been  received:  whereas  the  defendant  contends — 1  That  he  is  not 
chargeable  Avith  interest  at  all. — 2.  If  at  all,  only  from  the  filing  of  the 
bill. — 3.  At  all  events  only  on  annual  balances. 

5.  That  the  Commissioner  has  not  allowed  defendant  commissions  on 
receiving  and  paying  away  moneys. 

The  facts  relating  to  these  several  exceptions  are  fully  stated  in  the 
opinion  of  this  Court. 

Caldwell  and  Fair,  for  the  plaintiff. 
Fope  and  Summer,  for  the  defendant. 

O'Neall,  J.,  delivered  the  opinion  of  the  Court. 

3d.  The  objection  to  the  admissibility  of  George  Lever's  books,  to 
prove  cash  advanced  and  spirits  sold,  vanishes  when  we  look  to  the  i)roof 
on  which  they  were  received  in  evidence.  It  appears  that  the  items  were 
read  over  to  the  plaintiff,  and  he  was  requested  if  he  had  any  objection  to 
make  to  any  of  them  to  state  it.  He  objected  to  a  few  items,  but  not  to 
the  rest.  In  this  point  of  view,  the  books  were  admissible  to  show  what 
items  he  admitted  by  not  objecting  to  them,  when  he  selected  others  as 
improper  and  objected  to  them.  In  another  respect  too,  credit  was  given 
to  the  books  by  the  plaintiff.  He  stated  that  he  had  only  received  of  his 
money  $365,  and  the  charges  on  the  books  for  money  advanced  to  him 
corresponds,  as  the  plaintilPs  counsel  stated,  within  a  very  small  sum.  So 
I  think,  under  the  proof,  the  books  were  admissible ;  but  not  as  falling 
exactly  within  the  case  of  Sinclair  and  Kiddle  v.   Price,  decided  at 


128  SOUTH    CAROLINA    EQUITY    REPORTS.  [*159 

*1601  ^Columbia,  December  Term,  1832.*     Tliere  the  book  received  in 
-^  evidence  was  the  journal  of  an  agent  managing  a  country  store 

*  Sinclair  &  Kiddle,  Assignees  of  George  Keenan,  v.  Admr's  of  Thomas  Price. 

The  plaintiffs,  as  the  assignees  of  George  Keenan,  filed  their  bill  for  an  account 
against  the  defendants,  as  administrators  of  Thomas  Price,  alleging  that  Keenan, 
who  resided  in  Charleston,  furnished  goods  to  a  large  amount  to  Price,  living  in  Sjiar- 
tanburg,  to  be  retailed  by  Price,  as  his  agent.  The  defendants,  in  their  answer,  admit 
the  agency,  but  state  that  they  are  unable,  from  any  books  of  their  intestate,  to  say 
what  amount  of  goods  he  received,  or  on  what  advance  he  sold.  They  set  out,  how- 
ever, the  credit  and  cash  sales,  and  the  stock  of  gooils  on  hand.  They  further  state 
that  Price  kept  a  journal  of  his  remittances  and  disbursements  to  and  on  account  of 
Keenan,  the  amount  of  which  is  eight  thousand  seven  hundred  and  forty-eight  dollars. 

On  the  reference  which  was  ordered  to  make  up  the  accounts,  the  defendants 
offered  Price's  journal  in  evidence,  after  having  first  proved,  by  other  evidence,  the 
items  contained  in  it,  to  the  amount  of  seven  thousand  four  hundred  and  four  dollars, 
of  the  eight  thousand  seven  hundred  and  forty-eight  set  out  therein.  The  Commis- 
sioner rejected  the  journal  as  evidence.  On  appeal  to  this  Court,  on  this  point,  the 
following  opinion  of  the  Court  was  delivered:  — 

O'Neall,  .J.  Ought  the  journal  or  cash-book  of  the  defendant's  intestate  to  be 
received,  as  evidence  of  the  remittances  and  disbursements  contained  in  it?  This 
question  is  one  of  great  novelty.  The  affirmative  of  it  is  an  extension  of  the  princi- 
ple "that  merchants'  books,  from  necessity,  are  evidence  of  the  delivery  of  goods," 
to  all  transactions  between  principal  and  agent,  when  the  books  of  the  latter  are 
regularly  kept.  To  this  extent,  perhaps,  the  rule  ought  never  to  be  laid  down. 
But  with  some  qualifications,  I  think,  the  books  of  the  agent  ought  to  be  received. 
If  the  entries  are  made  in  the  usual  course  of  business,  then,  I  apprehend,  they  are 
evidence. — 1  Stark,  on  Ev.  73.  What  was  the  usual  course  of  business  in  the  case 
before  us?  The  defendant's  intestate  was  to  sell,  defray  expenses,  and  remit,  in 
cash  or  produce,  the  proceeds  of  the  sales.  It  is  both  usual  and  proper,  that  he 
should  keep  an  account  of  sales,  disbursements,  and  remittances.  Between  two 
honest  men,  this  account  would  always  constitute  the  guide  to  a  settlement.  If  the 
principal  is  not  disposed  to  admit  it  from  necessity,  it  appears  to  me  it  should  be  at 
least  evidence  in  favor  of  the  agent,  until  there  is  some  showing  bj'  which  a  doubt 
of  its  correctness  can  be  raised.  For,  in  a  transaction  between  principal  and  agent, 
it  is  not  to  be  expected  that  a  witness  can  be  produced  to  prove  every  dollar  paid 
for  the  expenses  of  the  business,  or  for  every  sum  remitted.  Here  then  exists  the 
same  necessity  to  receive  the  books  of  the  agent  in  evidence,  as  in  the  case  of 
merchants  and  shop-keepers.  There  is,  however,  another  consideration,  of  great 
weight,  growing  out  of  the  relative  situation  of  the  parties.  The  principal  holds 
out  his  agent  to  the  world  as  a  man  in  whom  he  places  such  trust  and  confidence, 
that  he  is  willing  to  be  bound  by  all  of  bis  acts  done  within  the  agency  committed  to 
him.  This  is  at  least  a  legal  good  character  given  to  the  agent  bj'  the  principal, 
as  to  all  acts  between  them.  It  is  saying,  on  his  part,  he  is  trustworthy,  and  with 
that  character,  his  books  ought  to  be  evidence  against  his  principal  until  it  appears 
he  has  forfeited  it  by  abusing  the  confidence  reposed  in  him.  But,  in  the  case  before 
us,  a  still  stronger  circumstance  may  be  adduced  why  the  books  of  the  agent  should 
be  received  against  the  principal.  It  will  be  recollected  that  he  sold  goods  on  credit 
for  the  use  of  his  principal.  His  books  would  have  been  evidence  for  his  principal, 
against  every  one  who  bought  goods  at  the  store.  Could  the  principal  be  allowed 
to  say:  "I  will  charge  A.  by  the  books  of  my  agent;  and  yet,  (when  he  is  called  ou 
to  account  to  me,)  I  will  reject  the  books  of  the  same  agent,  as  not  trustworthy, 
against  me?"  I  should  think  not.  The  principle  that  the  books  of  the  agent,  if  the 
entries  are  made  in  the  usual  course  of  business,  are  evidence  against  the  principal, 
is,  I  think,  well  sustained  by  the  case  of  the  Union  Bank  v.  Knapp,  3  Pick.  Rep. 
96,  which  I  have  taken  from  a  note  to  1  Stark  on  Ev.  73.  In  that  case,  which  was 
for  money  had  and  received  by  the  bank  against  a  depositor  who  had  overdrawn, 
it  was  held  that  the  books  of  the  bank  were  competent  evidence  to  show  receipts 
and  payments  of  money;  and  that  if  the  clerk  who  made  the  entries  be  dead,  or 
insane,  his  handwriting  may  be  proved.  From  this  case,  I  extract  two  principles, 
on  which  the  decision  turned:  1st.  That  the  entries  were  in  the  usual  course  of 
business ;  2d.  That  the  bank  was  the  agent  of  the  depositor  to  receive  and  pay  out 


*160]  COLUMBIA,    JANUARY,    1835.  129 

for  his  principal,  who  lived  at  a  distance.  It  contained  rcji'ular  entries 
of  cash  remitted,  expenses  paid,  cotton  remitted,  and  services  rendered. 
Both  principal  and  agent  were  dead,  and  nine-tenths  of  the  items  had 
been  established  by  other  proof.  It  was  held  that  the  jonrnal  was  the 
best  evidence  of  which  the  nature  of  the  case  was  susceptible,  and  was 
therefore  admitted.  "We  are  still  satisfied  of  the  correctness  of  that  de- 
cision, but  we  are  not  disposed  to  extend  it  beyond  the  case  to  which  it 
applies.  In  this  case  the  plaintiff  is  alive,  and  the  defendant  may  have 
his  discovery,  as  he  has  had  the  benefit  of  an  equivalent  in  his  admission  ; 
and  this  constitutes  one  reason  why  we  will  not  decide  this  case  on  the 
authority  of  that.  Another  reason  is,  the  books  do  not  purport  to  be 
entries  in  the  discharge  of  the  agency. 

7th.  The  7th  exception  must  have  been  sustained  on  the  authority  of 
the  decision  in  the  case  of  Sinclair  and  Kiddle  v.  Price,  decided  at  De- 
cember Term,  1833,  and  reported  in  part  in  Hill's  Chan.  Rep.  431,  if  in 
this  case,  as  in  that,  the  books  had  purported  *to  contain  an  ac-  t-^to-i 
count  of  all  the  moneys  paid  to  or  for  the  plaintiff.     The  answer  L 

his  deposits.  Both  of  these  are  applicable  to  the  case  under  consideration.  Other 
circumstances,  however,  in  this  case,  go  to  support  the  book  of  the  defendant's 
intestate.  In  an  early  stage  of  the  case,  this  book  was  directed  bj  a  decretal  order 
to  be  excluded.  It  contained  charges  during  several  years,  for  disbursements  and 
remittances  to  the  amount  of  eight  thousand  seven  hundred  and  forty-eight  dollars 
and  seveuty-five  cents;  the  defendants  succeeded,  by  other  proof,  in  establishing 
seven  thousand  four  hundred  and  four  dollars  out  of  this  sum.  This  is  strong  cor- 
roborating evidence  of  the  general  correctness  of  the  book;  and  when  both  the 
principal  and  agent  are  dead,  furnishes  at  least  such  reasonable  evidence  of  the 
correctness  of  the  charges  as  to  authorize  the  Commissioner  to  receive  it  in  evidence, 
and  give  it  such  weight  as  on  a  careful  examination  of  the  entries  be  may  think  it 
entitled  to.  If,  upon  such  examination,  he  should  find  nothing  in  the  hook,  or  find 
evidence  aliunde  to  discredit  it,  then  the  defendant  should  be  allowed  the  balance  of 
the  disbursements  and  remmittances  contained  in  it,  amounting  to  one  thousand 
three  hundred  and  forty-four  dollars  seveuty-five  cents,  and  which  they  were  unable 
otherwise  to  prove. 

The  case  was  again  brought  before  this  Court  in  January,  1834,  on  the  question, 
among  many  others,  whether  the  defendants  should  be  allowed  any  other  charges 
than  those  contained  in  the  journal.  On  which  Mr.  Justice  O'Neall  delivered  the 
following  opinion  of  the  Court: — 

In  another  part  of  our  opinion,  we  decided  that  the  defendants  should  be  allowed 
credit  for  all  the  charges  contained  in  the  journal  of  Price.  It  is  now  insisted,  by 
the  plaintiffs,  that  the  defendants  should  not  be  allowed  to  make  any  other  charges: 
and  I  am  satisfied  that  this  is  the  correct  mode  of  allowing  the  defendants  credit  for 
disbursements  and  remittances  made,  and  services  rendered  by  their  intestate  on 
account  of  his  agency.  This  journal,  or  cash-book,  professes  to  be  an  account  of  all 
the  debits  against  the  store,  for  disbursements  and  remittances  made  and  services 
rendered  by  the  intestate.  His  charges  were  made  while  the  transactions  were  fresh; 
it  is  not  to  be  believed  that  he  entered  part,  and  omitted  part.  Tiiese  were  his 
memoranda,  to  enable  him  to  settle  with  the  principal;  and  it  would  be  much  more 
reasonable  to  conclude,  that  he  had  charged  too  much  instead  of  too  little.  This 
view  is  sustained  by  the  defendants,  in  their  answer,  for  they  say,  "that  the  said 
Price  likewise  left  a  book,  in  which  he  kept  an  account  of  all  his  remittances  and 
disbursements  to,  and  on  account  of  said  Keenan,  including  his  wages  for  his  own  services." 
After  allowing  the  book  as  evidence  of  every  charge  contained  in  it,  it  would  be 
giving  to  the  defendants  a  great  and  unconscientious  advantage,  (and  one  which  I 
know  they  have  not  asked,  and  would  not,  under  any  circumstances,  ask  to  be 
allowed,)  to  permit  them  to  gather  up  every  charge,  which,  from  the  recollection  of 
witnesses,  might  slightly  vary  from  Price's  entries,  and  allow  such  in  addition.  The 
allowance,  however,  of  the  book,  as  evidence  of  the  charges  contained  in  it,  excludes 
necessarily  all  other  evidence  on  these  subjects. 


130  SOUTH   CAROLINA   EQUITY    REPORTS.  [*160 

here  does  not  state,  as  that  in  the  case  of  Sinclair  and  Kiddle  v.  Price 
did,  that  the  books  contained  an  account  of  all  payments  to  or  for  the 
plaintiff.  The  answer  here  states  "that  the  said  George  would  let  the 
said  Michael  have  small  suras  of  money,  but  states  that  the  said  George 
would  charge  him  with  the  same  in  his  account  against  the  said  Michael." 
The  preceding  parts  of  the  answer  stated  that  the  said  George  had  paid 
away  all  the  money  which  he  received  for  the  plaintiff.  There  is  there- 
fore nothing  in  the  answer  which  would  confine  the  defendant  to  the  books. 
There  is  in  this  case,  by  allowing  the  books  and  other  proofs  of  payments 
to  be  adduced,  no  danger  that  the  plaintiff  will  be  twice  charged  for  the 
same  thing ;  for  we  have  by  this  opinion  excluded  the  charges  which  were 
or  might  have  been  paid  by  Michael  out  of  the  money  received  by  him 
from  the  defendant's  testator.  In  Sinclair  and  Kiddle  v.  Price,  it  was 
manifest  that  this  double  charging  had  occurred.  This  exception  derives 
therefore  no  authority  from  that  case  ;  and  there  is  nothing  in  this  case 
which  makes  it  proper  to  confine  the  defendant,  in  discharging  himself,  to 
the  entries  on  his  testator's  books. 

*ir9l       *4th.   The  defendant's  4th  exception  presents  a  very  important 
""J  legal  question. 

I  will  proceed  to  state  the  views  which  I  have  taken  of  the  subject. 
The  defendant's  testator  was  the  agent  of  the  plaintiff  under  very  peculiar 
circumstances.  The  relation  of  father  and  son  would  seem  to  exclude  an 
intention  to  commit  wrong  on  the  part  of  the  former.  So,  too,  the  fact 
of  the  defendant's  imbecility  would  have  furnished,  ordinarily,  a  powerful 
inducement  to  his  father,  not  only  to  see  that  others  treated  him  rightly, 
but  also  to  make  him  careful  not  to  do  him  any  wrong.  I  know  Mr. 
Lever  well,  and  I  think  it  is  due  to  him  that  I  should  say  here  that  I  am 
satisfied  that  he  had  too  much  Dutch  honesty  and  integrity  to  take  a 
willful  advantage  of  any  one,  much  less  his  own  child. 

The  bill,  drawn  according  to  the  plaintiff's  statement,  and,  I  have  no 
doubt,  according  to  the  truth,  (for  it  is  an  old  saying  that  children  and 
fools  will  tell  the  truth,)  states  the  nature  and  extent  of  the  testator's 
agency  for  the  plaintiff  in  the  following  terms,  to  wit :  "  That  George 
Lever,  late  of,  &c.,  the  father  of  your  orator,  during  his  life,  from  the  time 
your  orator  arrived  at  the  age  of  twenty-one,  assumed  and  exercised  the 
^,po-]  entire  control  and  *management  of  your  orator's  estate,  both  real 
-^  and  personal,  in  the  character  and  capacity  of  a  trustee,  (or  rather 
as  his  natural  guardian,)  alleging  as  a  reason  for  so  doing  that  your  ora- 
tor was  of  so  weak  and  imbecile  mind  as  not  to  be  capable  of  managing 
his  estate  for  himself,  which,  your  orator  being  conscious  of  his  liability 
to  be  imposed  upon  by  the  frauds  and  devices  of  designing  persons,  as 
well  from  a  want  of  education  as  from  a  weakness  of  intellect,  and  repos- 
ing most  implicit  confidence  in  his  father,  always  permitted  him  so  to  do, 
with  the  express  understanding  between  them,  at  the  time  your  orator 
arrived  of  full  age,  and  during  the  continuance  of  that  relationship,  that 
he,  the  said  George,  would  keep  a  regular  account  of  the  receipts  and 
expenditures  thereof,  and  should  the  circumstances  of  your  oratorh 
situation  require  the  funds  in  his  hands  to  be  paid  over  before  his 
death,  he,  the  said  George,  would  come  to  a  full,  fair,  and  final  ac- 
counting and  settlement  ivith  your  orator,  and  pay  over  tvhatever  bal- 
ance might  be  in  his  hands ;  but  should  no  settlement  take  place  beticeen 


*163]  COLUMBIA,    JANUARY,    1835.  131 

them  hefore  the  death  of  the  said  George,  he  xcould  continue  to  act  in 
the  capacify  aforesaid,  until  the  time  of  his  death,  at  ivhich  time  your 
orator  should  be  paid  over  such  balance  as  mvjht  be  remainimj  in  his 
hands  at  that  time.'"  This  statement  was,  in  legal  effect,  an  agency  or 
legal  trust,  to  keep  the  money  of  the  *plaintiff  and  defray  his  debts  r.^ 
and  expenditures,  and  pay  over  the  balance  unexpended  before  or  L 
after  his  death,  on  demand.  In  the  former  opinion  of  this  Court  in  this 
case,  it  was  held  that  until  a  demand  made  on  the  defendant's  testator  to 
pay  over  the  funds  in  his  hands,  and  a  refusal  to  do  so,  that  the  statute 
of  limitations  did  not  commence  to  run  ;  and  that  there  being  no  demand 
alleged,  or  proved  to  be  made,  until  after  the  testator's  death,  that  the 
statute  of  limitations  could  not  run.  1  Hill's  Chan.  Rep.  62.  The 
case,  under  these  views,  would  seem  to  have  no  pretence  to  claim  interest 
as  of  course.  For  the  funds  in  the  hands  of  the  defendant's  testator  are 
to  be  regarded  as  a  mere  deposit,  upon  which  the  plaintiff  was  at  liljerty 
to  draw  as  he  needed.  It  was  no  part  of  the  duty  of  the  defendant's  tes- 
tator to  let  the  money  out  to  interest,  and  thus  make  interest.  This  is  a 
trust  between  parties,  who  regulate  it  for  themselves.  The  law  prescribes 
no  duty  to  the  agent  beyond  the  discharge  of  his  trust  according  to  the 
terms  of  his  contract.  In  the  cases  of  executors,  administrators,  guar- 
dians, and  trustees,  appointed  by  law,  it  is  their  duty  generally  to  make 
interest ;  and  hence,  from  this,  but  more  especially  from  the  fact  of  being 
required  to  make  up  their  accounts  annually,  they  are  held  to  be  generally 
liable  for  interest  on  annual  balances.  Cases,  therefore,  charging  them 
with  interest,  have  no  application  to  this  question. 

Being  an  agency  or  trust  ending  only  with  the  life  of  George  Lever, 
unless  a  demand  had  been  sooner  made  for  an  account  or  settlement,  I 
think  that  interest  can  only  be  allowed  from  a  demand  made  on  the  exec- 
utor for  an  account  and  settlement  after  the  death  of  Mr.  Lever ;  or,  if 
no  such  demand  can  be  proved,  then  from  the  filing  of  this  bill. 

In  the  case  of  Wright  v.  Hamilton,  which  was  an  action  against  a 
sheriff,  who  had  been  out  of  office  for  several  years,  for  money  collected 
as  sheriff',  it  was  held  that  until  a  demand  made,  the  plaintiff  was  not 
entitled  to  interest.  That  decision  proceeded  upon  the  very  footing  that 
this  case  must  occupy.  The  defendant  was  guilty  of  no  default  until  he 
refused  to  pay  over  the  money. 

But  it  is  contended,  as  I  understand,  that  the  use  of  the  money  by  the 
defendant's  testator  makes  him  liable  for  interest.  This  argument  at  first 
struck  my  mind  with  great  force,  and  I  was  inclined  to  think  it  would 
govern  the  case.  But  I  am  satisfied,  from  subsequent  examination  and 
reflection,  that  unless  the  defendant's  *testator  actually  made  in-  r*-j/.x 
terest  upon  the  plaintiff's  funds  by  loaning  them  out,  or  failed  to  '- 
pay  during  his  lifetime  the  debts  or  expenses  of  Michael,  to  his  injury  or 
prejudice,  he  would  not  be  liable  for  interest. 

In  the  case  of  Williams  v.  Storrs,  6  John.  C.  R.  353,  the  defendant 
was  the  agent  for  parties  residing  out  of  the  State  of  New  York.  He 
received  their  funds,  and  did  not  keep  them  separate  from  the  funds  which 
he  was  receiving  and  paying  away  as  agent.  It  was  held  that  he  was  not 
liable  for  interest.  Chancellor  Kent  said,  "  it  was  sufficient  if  he  kept  the 
money  safely,  and  paid  it  according  to  the  request  of  the  party  en  titled 
to  demand  and  receive."    In  the  case  under  consideration,  this  observa- 


132  SOUTH   CAROLINA   EQUITY   REPORTS.  [*165 

tion  of  the  Chancellor  has  a  direct  application,  as  will  be  seen  by  observ- 
ing that  George  Lever  must  have  kept,  during  his  lifetime,  the  money  of 
the  plaintiff  safely,  for  he  paid  all  his  debts  and  expenses  as  he  requested. 
I  don't  mean  to  say  that  he  kept  the  plaintiff's  money  locked  up,  but  that 
he  was  ready  to  pay  as  the  plaintiff  needed,  which  was  exactly  according 
to  the  terms  of  the  agency. 

The  case  of  Lord  Salisbury  v.  Wilkison,  8  Yes.  Jr.  48,  as  stated  by 
Lord  Eldon,  in  the  case  of  Lord  Chedvvorth  v.  Edwards,  is  a  direct 
authority  for  the  defendant.  In  that  case  Lord  Thurlow  held,  "  that 
under  the  circumstances,  the  defendant  could  not  be  affected  by  a  demand 
of  interest  of  the  money  he  had  in  his  hands,  eveii  siqypoaing  he  employed 
it."  The  circumstances  of  the  case  were,  that  the  defendant,  the  steward 
of  Lord  Salisbury,  had  informed  him  from  time  to  time  of  the  sums  of 
money  in  his  hands,  and  had  undertaken  that  there  should  be  always  a 
large  sum  in  his  hands,  for  which  he  would  be  responsible  from  time  to 
time.  In  this  case,  the  plaintiff  knew  of  the  funds  received  by  his  father 
as  he  received  them  ;  and  from  the  statement  in  his  bill,  the  defendant 
was  to  be  always  ready,  if  the  plaintiff's  situation  should  require  it,  to 
pay  over  the  balance  in  his  hands.  The  cases,  in  their  circumstances 
controlling  the  allowance  of  interest,  are  almost  identical. 

There  is  another  view  of  this  part  of  the  case.  This  was  a  debt  pay- 
able on  demand,  and  according  to  Schmidtz  v.  Limehouse,  2  Bail.  276, 
interest  was  not  recoverable  until  demand  made.  I  call  it  a  debt  not- 
withstanding it  is  recoverable  in  equity  ;  for  the  defendant's  testator  was 
liable  for  the  balance  left  after  auditing  and  allowing  his  accounts,  as  for 
so  much  money  received  to  the  use  of  the  plaintiff.  In  connection  with 
*lfiRl  ^'"^  view,  I  would  remark,  *that  the  plaintiff,  in  setting  out  the 
-^  agency,  does  not  pretend  that  interest  w'as  to  be  paid  ;  if  it  was 
to  be  paid  in  testator's  lifetime,  the  testator  was  to  "pay  over  wliatever 
balance  might  be  in  his  hands;"  if  not  paid  during  his  lifetime,  the 
plaintiff  was  to  be  paid  at  his  death,  "  such  balance  as  might  be  remain- 
ing in  his  hands  at  that  time."  Under  either  of  these  statements  of  the 
agency,  it  is  plain  that,  according  to  the  terms  of  it,  the  balance  of  the 
money  received  was  to  be  paid  over.  On  the  authority  of  the  case  of  the 
Earl  of  Hardwicke  v.  Vernon,  14  Ves.  510,  511,  I  think  under  this 
statement  of  his  case,  the  plaintiff  cannot  claim  interest  sooner  than  a 
demand  of  payment  from  the  executor  after  the  death  of  George  Lever. 
We  think  therefore  that  this  exception  must  be  sustained  and  the  report 
remodelled  by  striking  out  the  interest  in  favor  of  both  the  plaintiff  and 
the  defendant,  until  a  demand  was  made  after  the  death  of  George  Lever, 
or  the  filing  of  the  bill.  From  one  or  the  other  of  these  times,  the  plain- 
tiff is  entitled  to  interest  on  the  balance  in  hand  at  the  death  of  George 
Lever. 

5th.  The  defendant's  5th  exception  is  untenable.  In  the  case  of 
Cripps  V.  The  Assignees  of  Charles  Pinckney,  cited  and  stated  in  Muck- 
enfus  V.  Heath,  1  Hill's  Chan.  Rep,  182-3,  the  Court,  speaking  of  the 
claim  of  commissions,  says,  "but  thepHuate  agent  or  assignee  of  an  indi- 
vidual is  not  entitled  to  mii/  such  claim,  unless  he  makes  it  part  of  his 
contract."  This  decides  the  point  before  us,  and  when  it  is  recollected 
that  the  defendant's  testator  accounts  without  interest,  there  can  be  no 
hardship  in  requiring  him  to  do  the  business  of  a  weak-minded  son, 
without  compensation  by  way  of  commissions. 


CASES    IN   CHANCERY 

ARGUED     AND     DETERMINED     IN     THE 

COURT  OF  APPEALS  OF   SOUTH  CAROLINA 

dL^arleston — (februarir,  anb  P^artlj,  1835. 


JUDGES  PRESENT. 


Hon.  DAVID  JOHNSON,  Presiding  Judge. 
Hon.  J.  B.  O'NEALL.      I      Hon.  WILLIAM  HARPER. 


John  Welsh  v.  Patrick  Usher  and  others,  his  Attaching  Creditors. 

Where  one,  by  power  of  attorney,  authorized  another  to  sell  and  convey  a  ship,  and 
the  attorney  sold  and  received  payment,  but  by  mistake  or  ignorance  execu- 
ted the  bill  of  sale  in  his  own  name  instead  of  his  principal's,  in  consequence 
of  which  it  was  declared  void  at  law: — Held,  that  although  the  bill  of  sale  could 
not  operate  as  a  conveyance  at  law,  it  was  such  an  agreement  as  a  Court  of  Equity 
■will  cnrry  into  effect  against  creditors  of  the  vendor  who  had  subsequently  ob- 
tained legal  liens.  [*168] 

An  endorsement  on  a  ship's  register  at  the  time  of  sale,  that  "the  vessel  should  not 
be  sold  until  the  notes  given  for  the  purchase  money  were  paid,"  constitutes  an 
equitable  mortgage,  especially  when  the  ship's  register  was  left  with  the  vendor. 
L*170] 

The  plaintiff,  Welsh,  sold  to  Patrick  TJsher  the  brig  Junietta,  and,  at 
the  time  of  sale,  an  endorsement  was  made  on  her  register  that  "the 
vessel  should  not  be  sold  until  the  notes  given  for  the  purchase  money 
were  paid ;"  and  the  register  was  left  in  Welsh's  possession.  Some  time 
after,  Patrick  Usher  gave  to  his  brother,  Wm.  Usher,  a  power «of  attor- 
ney, authorizing  him  to  sell  his  property ;  and  he  accordingly  executed  a 
bill  of  sale  for  the  Junietta  to  the  plaintiff,  John  Welsh,  and  in  payment 
received  the  notes  given  for  the  original  purchase  money.  In  the  bill  of 
sale,  he  used  the  words  "  I,  Wm.  Usher,  attorney  in  fact  of  Patri'ck 
Usher,  owner  of  the  brig  Junietta,  &c.,  do  grant,  bargain  and  sell,"  and 
he  signed  "Wm.  Usher,  attorney  for  Patrick  Usher."  The  vessel  was 
at  sea  at  the  time,  and  on  her  arrival  at  port  in  Charleston,  she  was 
attached  by  the  creditors  of  Patrick  Usher,  as  his  property.  The  plaintiff, 
Welsh,  then  interposed  his  claim,  upon  the  ^grounds :  1.  That  by  r*i />q 
the  endorsement  on  the  register,  he  retained  a  lien  on  the  vessel,  •- 
for  the  purchase  money.  2.  That  by  his  bill  of  sale  he  was  the  owner; 
and  that  the  attaching  creditors  had  no  rights  superior  to  the  debtor, 
Vol.  1.— 32 


134  SOUTH    CAROLINA   EQUITY   REPORTS.  [*168 

Patrick  Uslier.  This  claim  was  resisted  by  the  creditors  on  the  grounds  : 
1.  That  the  endorsement  on  the  register  was  a  mere  agreement  not  to 
sell,  and  did  not  amount  to  a  lien.  2.  That  the  bill  of  sale  was  not  the 
deed  of  Patrick  Usher,  because  it  was  executed  in  the  name  of  Wra, 
Usher,  and  not  in  that  of  his  principal ;  it  was  therefore  void.  The  case 
was  tried  at  law,  and  taken  to  the  Court  of  Appeals,  where  these  posi- 
tions of  the  creditors  were  sustained  :  1  Hill,  155.  The  present  bill  was 
then  filed,  setting  forth  these  facts,  and  insisting  : — 1.  That  although  the 
bill  of  sale  was"  void  at  law,  as  the  deed  of  Patrick  Usher,  it  was  his 
agreement,  entered  into  by  his  authorized  agent,  who  having  received  the 
payment,  his  principal  was  bound  ;  and  such  agreement  being  valid,  a 
Court  of  Equity  would  supply  the  defective  execution,  and  compel  Patrick 
Usher  now  to  execute  a  perfect  conveyance.  2.  That  the  endorsement 
was  intended  as  a  lien,  and  should  be  supported  by  the  Court  as  an 
equitable  mortgage  against  the  party,  or  his  creditors, — and  prayed  that 
Patrick  Usher  be  decreed  to  perfect  the  title  to  the  brig ;  that  the  en- 
dorsement be  decreed  a  mortgage,  and  that  the  attaching  creditors  be 
perpetually  enjoined  at  law  from  prosecuting  their  claims. 

The  cause  was  heard  in  Charleston,  before  Chancellor  De  Saussure, 
who  refused  the  injunction  and  dismissed  the  bill :  and  from  his  decree 
the  plaintiff  appealed. 

Hunt  and  Thomson,  for  the  plaintiff.  i 

Petigru  and  Dunkin,  for  the  creditors. 

Harper,  J.  I  am  of  opinion,  that  the  deed  executed  by  William 
Usher,  though  it  could  not,  as  has  been  decided,  operate  at  law  as  the 
conveyance  of  Patrick  Usher,  must  be  executed  in  Equity  as  the  agree- 
ment of  Patrick  Usher ;  certainly  it  is  such  an  one  as  the  Court  would 
execute  as  against  Patrick  Usher  himself,  and  his  legal  representatives. 
This  is  not  a  reforming  of  the  instrument,  but  goes  on  the  familiar  equity 
♦ITQI  principle,  that  when  ^property  is  attempted  to  be  transferred  by 
^  deed,  and  there  are  circumstances  to  prevent  its  operating  as  a 
conveyance,  equity  will  give  it  effect  as  an  agreement ;  as  in  the  case  of 
Colman  v.  Sarrell,  1  Yesey,  Jr.  p.  409;  3  Bro.  C.  C.  12,  where  Bank 
Stock,  which  could  only  be  transferred  legally  on  the  books  of  the  Bank, 
was  attempted  to  be  by  deed,  there  is  no  question  but  that  the  Court 
would  have  executed  it  as  an  agreement,  if  there  had  been  a  sufficient 
consideration,  and  in  Wadsworth  v.  Wendell,  5  Johns.  C.  R.  224,  where 
land  was  attempted  to  be  conveyed  by  an  instrument  having  in  other 
respects  the  form  of  a  conveyance,  but,  in  consequence  of  "  mistake  or 
ignorance,"  as  the  Chancellor  expresses  it,  without  a  seal.  The  rule  is 
laid  down  generally  in  Morse  v.  Faulkner,  1  Anst.  11,  that  an  agreement 
to  convey,  or  a  deficient  conveyance,  will  bind  the  lands  iu  the  hands  of 
the  grantor  or  his  heirs. 

Now,  there  is  no  doubt  that  William  Usher  had  authority  to  convey 
this  vessel.  He  attempted  to  convey  by  deed,  but,  by  mistake  or  igno- 
rance, executed  the  deed  in  his  own  name.  If  an  agent  contracts  in  his 
own  name,  without  disclosing  his  principal,  the  general  rule  of  law  is, 
that  the  principal,  if  afterwards  discovered,  is  liable  on  that  contract: 
Waring  v.  Favenck,  1  Campbell's  N.  P.  R.  85  ;  Rymer  v.  Suwercrapp^ 


*169]         CHARLESTON,  FEBRUARY,  1835.  135 

lb.  109  ;  Railton  v.  Hodgson,  4  Taunt.  5V6.  If  William  Usher,  there- 
fore, had  only  agreed  to  convey  in  his  own  name,  and  without  reference 
to  his  principal,  it  follows  that  the  principal  would  have  been  bound  ;  but 
he  does  refer  to  his  principal.  The  terms  of  the  deed  are,  "I,  William 
Usher,  Junior,  attorney  in  fact  of  Patrick  Usher,  owner  of  the  hv'igJuni- 
etta,^^  &c.  From  a  technical  legal  principle,  and  from  the  manner  in 
which  the  deed  is  signed,  this  cannot  operate  as  a  conveyance  at  law  ; 
but  can  there  be  any  doubt  as  to  what  was  meant  ?  And  what  is  there 
to  prevent  equity  giving  effect  to  that  intention  ?  The  words  "  attorney 
in  fact  of  Patrick  Usher,"  are  regarded  at  law  as  terms  of  description  and 
surplusage ;  and  when  an  executor  sells  the  goods  of  his  testator,  and 
takes  a  bond  payable  to  himself,  as  executor,  at  law  this  is  regarded  as 
his  personal  debt,  and  the  terra  "  executor,"  as  a  word  of  description. 
But  is  there  any  doubt  that  in  equity  this  signifies  the  trust,  and  that  the 
bond  will  be  regarded  as  assets  of  the  estate  ?  I  cannot  conceive  a  case 
in  which  equity  ought  to  aid  a  defective  conveyance,  if  not  in  this. 

*I  think,  also,  with  the  deference  which  I  always  feel  towards  the  |-^,  ^^ 
judgment  of  the  Chancellor  who  pronounced  the  decree,  that  the  ^  * 
endorsement  on  the  ship's  register  constituted  an  equitable  mortgage,  and 
gave  an  equitable  lieu  ;  Lord  Hardwicke,  in  Lowthall  v.  Tonkins,  2  Eq. 
Ca.  Ab.  381,  explains  what  is  meant  l)y  goods  being  bound  by  an  execu- 
tion ;  that  is,  he  described  the  lien  of  an  execution,  "  that,  if  the  defend- 
ant makes  an  assignment  of  his  goods,  unless  in  market  overt,  the  sheriff 
may  take  them  in  execution."  To  say,  then,  that  the  vendee  shall  not 
have  power  to  sell,  is  in  terms  to  say  that  the  vendor  shall  have  a  lien. 
This  could  not  operate  as  a  mortgage  at  law,  because  it  did  not  change 
the  property,  and  it  would  therefore  be  regarded  as  nothing  else  than  a 
personal  contract ;  but  so  to  regard  it  in  equity,  would  be  to  render  it 
absolutely  nugatory  and  unmeaning.  The  vendor  had  already  all  the 
security  that  the  personal  liability  of  the  vendee  could  give  him.  This 
construction  is  aided  by  the  circumstance  of  the  vessel's  register  being  left 
in  Welsh's  possession.  I  need  not  refer  to  the  cases  in  which  the  deposit 
of  title  deeds  is  held,  to  constitute  an  equitable  mortgage,  to  which  this 
seems  very  analogous. 

This  equity,  though  existing,  could  not  prevail  against  a  subsequent 
purchaser  for  valuable  consideration,  without  notice.  The  only  matter 
on  which  it  struck  me  there  might  be  a  doubt,  was,  whether  it  could  pre- 
vail against  creditors  who  had  subsequently  obtained  legal  liens.  But  a 
reference  to  authorities  puts  this  out  of  question.  In  Burgh  v.  Francis, 
referred  to  in  Taylor  v.  Wheeler,  2  Vernon,  564,  the  defect  of  livery  in 
making  a  mortgage,  was  supplied  against  judgment  creditors.  In  Finch 
V.  The  Earl  of  Winchelsea,  1  P.  W.  27T,  it  was  held  that  an  agreement 
to  convey,  on  adequate  consideration,  would  be  good  against  a  subsequent 
judgment.  In  Burn  v.  Burn,  3  Vesey,  582,  the  case  of  Sir  Simeon  Stuart 
is  referred  to,  in  which  an  incomplete  agreement  to  mortgage  was  made 
.  good  against  a  judgment.  To  the  same  effect  were  our  own  decisions,  in 
Read  v.  Simmons,  2  Eq.  Rep.  454,  and  Menude  v.  Delaire,  2  Eq.  Rep. 
565.  In  Taylor  v.  Wheeler,  the  defect  of  a  surrender  in  a  mortgage  of 
copyhold  was  supplied  against  the  assignees  of  the  bankrupt  mortgagor  ; 
here  the  complete  legal  title  was  in  the  trustees  of  the  creditors.  The 
Chancellor  at  first  doubted,  but  said  that  the  creditors  would  be  entitled 


136  SOUTH   CAROLINA   EQUITY   REPORTS.  [*170 

to  no  more  than  was  properly  the  bankrupt's.  I  need  hardly  observe, 
^,f.,-|  that  there  is  *no  question  of  notice  or  want  of  notice  to  creditors 
-^  where  fraud,  arising  out  of  the  possession  of  the  mortgagor  or 
vendor,  is  relied  on.  I  do  not  find  the  precise  case  of  an  attachment,  but 
there  cannot  be  a  doubt  that  it  must  be  governed  by  the  same  principles. 
Its  lien  cannot  be  of  a  higher  nature  than  that  of  a  judgment  and  execu- 
tion. It  holds  the  property  that  it  may  be  rendered  liable  to  execution. 
It  could  not  take  the  property  against  the  lien  an  of  older  execution, 
against  which,  however,  the  equitable  claim  would  prevail.  Still  stronger 
is  the  case  of  the  bankrupt's  assignees.  It  was  a  ground  of  the  decision 
at  law,  that  if  any  equitable  lien  existed,  the  remedy  was  in  equity,  and 
the  plaintiff  cannot  be  repelled,  now  that  he  comes  into  equity  to  seek  it. 
It  is  therefore  ordered  and  decreed,  that  the  Chancellor's  decree  refusing 
the  injunction,  be  reversed,  and  that  the  defendants,  attaching  creditors 
of  Patrick  Usher,  be  enjoined  from  proceeding  against  the  Junietta. 

Johnson,  J.,  and  O'Neall,  J.,  concurred. 


Wm.  Bartlett  and  Wife,  Adm'r  and  Adm'x  of  Thos.  Wurtz,  v.  Wm, 

Thynes. 

A  release  given  by  a  weak  man,  to  his  general  agent  on  final  settlement,  under  the 
circumstances  sustained  in  bar  to  a  bill  for  an  account.  [*174] 

Where  mortgaged  negroes  were,  by  an  agreement  endorsed  on  the  mortgagee,  left  in 
possession  of  the  mortgagee,  and  to  continue  there  in  lieu  of  interest  until  the 
debt  is  paid,  no  length  of  time  will  bar  the  right  of  redemption.  [*178] 

Sucb  an  agreement  is  not  usurious  unless  the  value  of  the  hire  so  far  exceed  the 
interest  as  to  manifest  a  corrupt  intent.  [*179] 

Charleston.— April,  1833. 

De  Saussure,  Chancellor.  It  appears  that  the  late  Thomas  Wurtz 
was  a  weak  man,  and  so  habituated  to  intoxication  as  to  render  him 
incapable  of  managing  his  own  affairs.  The  Honorable  Wm.  Johnson, 
Judge  of  the  Supreme  Court  of  the  United  States,  for  some  time  kindly 
took  care  of  him  and  his  affairs,  and  protected  him  from  injury  by  others. 
It  being  inconvenient  to  him  to  continue  this  superintendence,  which  also 
required  closer  and  more  personal  inspection  than  he  could  bestow,  he 
gave  it  up,  but  advised  that  Mr.  Wm.  Thynes  should  be  employed  for 
the  purpose.  This  being  agreed  to,  Judge  Johnson  drew  up  an  agree- 
ment, in  his  own  handwriting,  between  Thomas  Wurtz  and  Wm.  Thynes, 
which  bears  date  9th  August,  1816,  and  is  duly  executed  under  seal  by 
both  parties,  Judge  Johnson  being  a  subscribing  witness  thereto.  By 
this  instrument  it  is  stated  that  Thomas  Wurtz  was  entitled  to  seventeen 
♦ITSI  slaves  and  a  sum  of  money  for  *the  sale  of  some  land  on  John's 
-^  Island,  and  the  hire  of  his  slaves,  and  that  being  conscious  of  his 
inability  to  conduct  a  plantation  without  instruction  and  assistance,  he 
therefore  agreed  to  constitute  William  Thynes  his  sole  absolute  agent  and 
attorney,  to  transact  his  affairs  in  his  name  and  for  his  use,  and  to  allow 
him  one-half  of  the  profits  arising  from  his  property,  in  full  compensation 
for  his  services ;  and  William  Thynes,  on  his  part,  agreed  to  negotiate 


*172]  CHARLESTON,   FEBRUARY,    1835.     '  137 

on  behalf  of  the  said  Thomas  Wurtz,  the  purchase  of  a  suitable  tract  of 
land,  to  be  paid  for  out  of  the  nior.eys  of  the  said  Thomas,  and  to  remove 
to  the  same  and  settle  and  plant  thereon  with  the  nc,<^roes  of  the  said 
Thomas,  and  faithfull}^  to  account  to  him  for  the  proceeds  thereof;  and, 
in  the  mean  time,  that  the  said  Thomas  should  be  boarded  in  the  house 
of  the  said  William,  and  be  allowed  i-easonable  lodging,  board  and  cloth- 
ing, and  pocket  money.  The  agreement  to  remain  in  force,  and  be  irre- 
vocable for  and  during  the  term  of  fourteen  years,  during  which  time  the 
said  William  Thynes  shall  apply  annually  the  dividends  of  the  said 
Thomas,  to  the  purchase  of  such  property  as  may  be  deemed  bene- 
ficial, and  take  parental  care  of  him  in  sickness  and  in  health. 

In  pursuance  of  this  agreement,  William  Thynes  took  possession  of  the 
estate  and  effects  of  Thomas  Wurtz,  and  managed  the  same  ;  and  on  the 
20th  December,  1822,  they  both  executed  a  deed,  or  instrument  of  writing, 
by  which  they  stated  that  they  had  an  accounting  settlement  together,  of 
and  concerning  the  agency  and  management  of  the  property  of  said 
Thomas  Wurtz,  had  and  exercised  by  the  said  William  Thynes,  under 
the  power  of  attorney  of  9th  August,  1816,  and  that  upon  such  account- 
ing, the  said  Thomas  Wurtz  was  found  indebted  to  the  said  William 
Thynes  in  the  sum  of  $675  ;  whereupon  it  was  agreed  that  the  said  power 
of  attorney  should  be  cancelled,  and  that  the  said  Thomas  Wurtz  should 
pay -or  secure  to  be  paid  to  the  said  William  Thynes,  the  said  sum  of 
$6*75  ;  and  the  said  William  Thynes,  in  consideration  of  the  said  $675, 
(to  be  paid  or  secured,)  relinquished  all  interest  and  benefit  under  the  said 
power,  and  consented  that  the  same  should  be  cancelled,  and  Thomas 
Wurtz  discharged  from  all  further  demands  on  account  of  said  property ; 
and  Thomas  Wurtz  covenanted  and  agreed,  and  did  exonerate  and  dis- 
charge the  said  William  Thynes  from  all  and  every  other  and  further 
account,  reckoning,  claim  or  demand,  of  what  claim  or  nature  whatsoever, 
which  he  *had  or  might  have  by  reason  of  his  agency  aforesaid,  rrjci-o 
or  for  any  other  account  whatever.  ^      ' 

Attached  to  and  forming  part  of  this  instrument,  there  was  another 
paper  signed  by  Wm.  Thynes,  under  seal,  dated  20th  Dec.  1822,  by 
which  he  acknowledged  to  have  received  of  Thomas  Wurtz  a  promissory 
note  for  $475,  payable  on  1st  January,  1824,  and  that  two  slaves,  little 
Jack  and  Hester,  mortgaged  to  secure  the  payment  thereof,  were  in  his 
possession,  where  they  were  to  continue  in  lieu  of  interest,  until  said  note 
be  paid  ;  upon  which  payment  he  promised  to  deliver  to  the  said  Tlioinas 
Wurtz,  his  executors,  administrators  and  assigns,  the  said  slaves,  with  the 
issue  and  increase  of  the  females,  if  any,  without  delay  or  default ;  the 
purport  of  which  receipt  is  endorsed  on  the  mortgage  given  to  him,  the 
said  William  Thynes.  A  copy  of  the  mortgage  thus  referred  to  accom- 
panied the  proceedings,  and  is  in  the  usual  form,  dated  20th  Docoml)er, 
1822,  by  which  Thomas  Wurtz  mortgaged  the  two  slaves,  little  Jack  and 
Hester,  to  William  Thynes,  to  secure  the  payment  of  $475,  due  on  his 
promissory  note,  with  interest,  payable  1st  January,  1824,  and  in  default 
of  payment,  the  said  slaves  to  be  sold,  and  the  surplus,  if  any,  paid  over 
to  said  Wurtz.  Mr.  Joseph  Bennett,  a  practising  attorney  of  reputation, 
appears  to  have  drawn  and  witnessed  these  papers. 

At  the  hearing  of  the  cause,  the  deeds  and  instruments  of  writing  were 
given  in  evidence.     Mr.  Robert  Green,  a  witness,  testified  that  he  knew 


138  SOUTH    CAROLINA   EQUITY    REPORTS.  [*173 

the  negroes,  Jack  and  Hester.  Jack  was  likely  and  prime — was  patroon 
of  Tliynes'  boat  for  a  year  or  two  ;  also,  worked  on  Thynes'  farm — was 
good  for  any  work.  The  general  hire  for  boatmen  is  $12  or  $14  per 
month — field  slaves  worth  from  $40  to  $60  per  year.  Hester  worked 
chiefly  about  the  house — worth  about  as  much  as  ordinary  slaves.  She 
had  two  children.  Both  Hester  and  Jack  in  the  prime  of  life.  On  his 
cross-examination,  he  stated  that  when  he  first  knew  him,  Jack  was  a 
boy.  When  Thynes  first  had  him,  hired  him  at  seven  dollars  per  month — 
lie  fed  and  clothed  them.  Wurtz  left  Thynes  when  he  got  married  in 
1819.  The  mortgage  was  in  1822.  Witness  did  not  know  of  any  deal- 
ings between  them.  The  two  slaves  were  worth  $100  per  year,  for  the 
last  five  years.  Common  boat  hands  earn  $12  per  month.  Wurtz  was 
a  weak  man,  the  most  foolish  he  ever  knew. 

Mr.  Lance  testified  that  he  knew  Wurtz  ;  he  was  a  very  weak  man,  an 
imbecile,  and  almost  an  idiot.  He  forgot  what  he  had  done — sometimes 
he  spoke  well  and  with  some  acuteness. 

^       -,       *The  pleadings  in  this  case  are  not  made  up  with  the  accustomed 
-I  accuracy  of  the  bar.     There  is  no  prayer  to  the  bill,  and  it  is  stated 
to  the  Court,  that  the  parties  agreed  the  cause  should  come  on,  as  if  the 
common  prayer  was  inserted. 

Two  questions  were  made  in  this  case  : — 

1st.  Whether  the  plaintiff  is  entitled  to  a  general  decree  for  an  account, 
or  was  barred  by  the  settlement  and  release  in  December,  1822. 

2d.  Supposing  the  release  obligatory,  is  the  demand  of  the  plaintiff  to 
redeem  the  mortgaged  slaves,  on  payment  of  the  debt  due  by  Wurtz  to 
Thynes  on  note  of  hand,  well  founded,  or  is  the  right  to  redeem  barred  ? 

There  is  no  doubt  that  Wurtz  was  a  weak  man,  incapable  of  much 
mental  exertion,  but  not  an  idiot.  Judge  Johnson,  who  knew  his  infirm- 
ity, advised  the  contract  and  arrangement  with  Thynes,  and  actually  drew 
up  the  agreement  in  his  own  handwriting,  and  of  course  knew  and 
approved  the  terms.  This  proves  that  he,  who  was  a  most  competent 
judge,  did  not  consider  Wurtz  incapable  of  forming  contracts  which 
should  be  obligatory  upon  him,  and  that  he  thought  Thynes  a  good  man, 
fit  to  be  intrusted  with  such  a  charge  and  such  a  power  as  was  confided 
to  him  by  Wurtz.  Until  Wurtz's  marriage  in  1819,  he  appears  to  have 
lived  contentedly  with  Thynes  under  the  agreement.  After  that  he  went 
away,  and  the  difference  of  his  situation  rendered  it  difficult  to  carry  the 
agreement  regularly  or  satisfactorily  into  execution.  Accordingly,  the 
parties  came  to  a  settlement  in  the  year  1822.  The  power  to  Thynes 
was  agreed  to  be  cancelled,  the  parties  had  some  accounting,  and  the 
balance  of  $615  was  struck  as  due  to  Thynes.  A  release  was  executed 
by  Wurtz,  and  he  gave  his  note  for  the  sura  of  $475,  part  of  the  said 
balance,  with  a  mortgage  of  two  slaves.  It  was  this  release  which  was 
attempted  to  be  set  aside.  The  bill,  however,  does  not  allege  fraud  in 
obtaining  it.  It  does  not  allege  false  accounts  or  misrepresentations. 
It  does  not  attempt  even  to  surcharge  and  falsify.  All,  or  most  of  this, 
would  be  necessary  to  induce  the  Court  to  open  the  accounts,  much  more 
to  set  aside  the  release.  The  settlement  and  release  appear  to  have  been 
made  under  the  direction  of  Mr.  Joseph  Bennett,  a  gentleman  of  char- 
acter and  judgment.  I  believe  the  release  now  before  me  is  drawn  up  in 
his  handwriting,  and  I  am  bound   to  believe  that  he  did  not  permit 


♦I-? 


174]  CHARLESTON,   FEBRUARY,    1835.  139 

Thynes  to  practice  a  fraud  on  the  weak  Wurtz,  of  which  *thcre  r^, ^- 
is  no  sufficient  proof.     There  is  no  moral  or  technical  ground  on  L 
which  I  am  at  liberty  to  set  aside  this  release. 

The  next  question  relates  to  the  mortgage  of  the  two  slaves  to  secure 
the  payment  of  the  note  of  hand  for  $415.  For  it  seems  that  $200  of 
the  balance  of  $675  must  have  been  settled  in  some  other  way,  or  given 
np  voluntarily. 

The  deed,  or  instrument,  bearing  date  20th  December,  1822,  from 
"Wurtz  to  Thynes,  recites  that  the  former  was  indebted  to  the  latter  by 
note,  for  $475  payable  1st  January,  1824,  and  the  better  to  secure  the 
payment,  conveyed  to  said  Thynes  the  slaves  little  Jack  and  Hester, 
with  proviso,  that  if  the  debt,  with  the  interest  thereon,  be  paid  on  or 
before  1st  January,  1824,  then  the  mortgage  to  be  void  ;  and  in  default 
of  payment,  Thynes  was  authorized  to  sell  and  dispose  of  the  said  slaves, 
and  apply  the  proceeds  to  pay  the  said  note,  with  interest,  returning  the 
surplus,  if  any,  to  Wurtz.  Thynes,  at  the  bottom  of  the  mortgage,  wrote 
an  acknowledgment  of  the  receipt  of  the  slaves,  and  his  possession  of 
them,  to  be  held  in  lieu  of  interest,  until  the  note  should  be  pajd,  on 
which  payment  he  promises  to  deliver  up  said  slaves  and  their  issue,  if 
any. 

It  appears  to  me  to  be  unquestionable  that  this  is  a  mortgage  of  the 
slaves  named  in  the  deed,  but  so  qualified  by  the  receipt  of  Thynes  (which 
he  cannot  question)  as  to  give  it  the  character  in  some  respects  of  a 
vivum  vadium. 

Two  questions  were  made  on  the  argument.  What  is  due  to  the 
creditor?  Is  not  the  owner  of  the  slaves  barred  by  the  statute  of  limita- 
tions from  recovering  ? 

The  mortgage  stipulates  that  interest  is  to  be  paid  on  the  note.  The 
receipt  of  Thynes  states  that  the  slaves  are  to  remain  in  his  possession  in 
lieu  of  interest.  There  is  then  a  discrepancy  between  the  two  instruments. 
The  Court  prefers  the  plain,  straightforward  dealing  for  legal  interest. 
In  many  cases  the  use  of  the  property  left  in  pledge  is  worth  a  great  deal 
more  than  lawful  interest.  It  is  a  temptation  and  a  shelter  to  usury. 
The  Court  therefore  leans  against  that  construction  which  would  produce 
those  effects;  and  where  the  two  papers  speak  a  different  language,  will 
prefer  that  which  is  most  in  the  usual  course  of  business,  and  most  likely 
to  do  justice  between  the  parties  ;  and  it  will  consider  and  treat  this  case 
as  a  mortgage  to  pay  a  certain  sum  of  money,  with  legal  interest,  and  the 
defendant  to  account  for  the  hire  and  labor  of  the  slaves. 

*But,  it  is  said  for  the  defendant,  that  his  possession  of  these  r*pg 
slaves  has  been  so  long  continued  since  the  note  was  due,  (1st  '- 
January,  1824,)  that  he  is  protected  by  the  statute  of  limitations.  There 
is  a  difficulty  certainly  on  this  part  of  the  case.  For  if  the  instrument  be 
considered  merely  a  common  mortgage,  morfuum  vadium,  then  the 
statute  of  1712  vests  the  estate  in  the  mortgagee.  But  if  the  receijit  of 
Thynes  gives  the  instrument  a  qualified  character,  partaking  of  the  vivum 
vadium,  then  the  bar  from  the  construction  of  the  statute  does  not  api)ly.' 

The  cases  are  very  numerous  in  which  the  Court  has  been  obliged  to 
give  construction  to  deeds  in  order  to  decide  what  was  the  nature  of  the 
instrument,  from  the  apparent  intention  of  the  parties,  although  the  deeds 
themselves  did  not  distinctly  mark  their  own  character.     A  pawner  of 


140  SOUTH    CAROLINA    EQUITY    REPORTS.  [*176 

goods,  ia  nature  of  a  vicum  vadium,  where  no  time  is  stipulated  for  a 
redemption  of  them,  has  his  whole  life  to  redeem ;  and  if  there  be  a  time 
fixed  to  redeem,  and  that  has  elapsed,  the  pawner  may  still  redeem  until 
the  thing  pledged  is  sold.  In  the  present  case,  the  holder  of  the  slaves 
might  have  sold  when  the  time  of  payment  arrived,  (1st  January,  1824,) 
but  until  the  sale  the  debtor  may  redeem. 

It  is  therefore  ordered  and  decreed,  that  it  be  referred  to  the  Commis- 
sioner, to  ascertain  how  much  is  dne  by  the  estate  of  Wurtz,  to  Thynes, 
on  the  note,  with  interest  thereon  ;  and  that  an  account  be  taken  of  how 
much  should  be  allowed  for  the  hire  and  labor  of  the  two  slaves,  little 
Jack  and  Hester,  and  that  the  same  shall  be  deducted  from  the  amount 
of  the  said  note  and  interest ;  and  that  the  balance,  if  any,  be  paid  by 
the  representatives  of  Wurtz  to  Wm.  Thynes  ;  and  if  not  paid,  on  report 
made  and  confirmed,  that  the  said  slaves  be  sold  by  the  Commissioner,  at 
public  sale,  for  cash,  and  the  surplus,  if  any,  be  paid  to  the  representa- 
tives of  Wurtz.     Costs  to  be  paid  out  of  the  sale  of  the  slaves. 

The  defendant  appealed  on  the  following  grounds  : — 

1.  That  the  agreement  between  the  parties  was  fairly  executed  on  good 
consideration,  and  is  valid ;  and  it  expressly  stipulates  that  there  shall  be 
no  account  for  the  labor  of  the  negroes. 

2.  That  if  the  agreement  is  not  valid,  the  plaintiff  is  barred  by  the 
statute  of  limitations. 

3.  That  the  defendant  being  a  mortgagee  in  possession  for  more  than 
two  years  after  the  time  fixed  for  payment,  the  right  of  redemption  is 
barred  by  the  act  of  1712. 

^,Hh.-i  ^Memming'r,  for  the  appellant,  contended  that  the  Chancellor 
-■  had,  by  his  decree,  made  an  agreement  for  the  parties  different 
from  that  they  had  entered  into.  From  the  time  the  release  was  exe- 
cuted, they  stood  indifferent  to  each  other — their  former  relation  ended  : 
and  it  was  then  agreed  that  the  mortgaged  negroes  should  go  into 
defendant's  possession,  and  their  labor  be  in  lieu  of  interest.  If  the 
mortgage  and  agreement  be  void,  the  plaintiff  can  bring  trover,  and  this 
Court  has  no  jurisdiction,  and  in  such  case  the  defendant  would  be  pro- 
tected by  the  statute  of  limitations.  If  they  are  valid,  they  constitute 
either  a  common  or  qualified  mortgage  ;  if  the  former,  the  plaintfif's  right 
to  redeem,  after  two  years'  possession  from  the  time  of  condition  broken, 
is  barred  by  the  Act  of  1812;  1  Brev.  Dig.  70.  Mortgagee,  after  con- 
dition broken,  may  bring  trover;  Montgomery  v.  Kerr,  1  Hill,  291. 
Length  of  time  by  analogy  to  the  statute  of  limitations  is  a  bar  ;  2  Atk. 
362  ;  2  Ball  &  Beatty,  402.  Regarding  the  transaction  as  a  qualified 
mortgage,  the  interest  must  be  set  oft"  against  the  labor  of  the  slaves,  and 
there  is  an  end  to  the  account.  It  cannot  be  usurious,  for  with  the  risks 
incurred  the  labor  would  not  be  more  than  an  equivalent  for  common 
interest.  But,  if  it  were  usurious,  the  doctrine  of  equity  is,  that  the 
principal  and  lawful  interest  shall  be  paid  ;  Stat.  Rep.  408 ;  1  Ves.  jr. 
»527. 

Hunt,  contra,  insisted  that  the  defendant  is  to  be  regarded  as  a 
trustee  in  possession,  and  dea'ling  with  his  cestui  que  trust,  (a  weak  man 
over  whom  he  has  great  influence)  for  the  trust  property.  Under 
such  circumstances  this  Court  will  not  sustain  the  mortffapre  and  a^ree- 


*177]  CHARLESTON,    FEBRUARY,    1835.  141 

ment,  unless  it  be  shown  that  the  transaction  was  fair,  just  and  reasonable. 
This,  he  argued  from  the  value  of  the  hire  of  the  negroes,  it  was  not ; 
but  on  the  contrary,  unconscientious  and  usurious.  If  usurious,  the  act  of 
ltl2  does  not  apply.  But  the  agreement  qualifies  the  mortgage,  and 
gives  the  party  an  unlimited  right  of  redemption. 

Johnson,  J.     The    question    growing   out   of  the   grounds   of  this 
motion,  are  : — 

1.  Whether  the  plaintiffs'  right  to  redeem  the  slaves,  Jack  and  Hester, 
and  for  an  account  of  their  hire,  is  not  barred  by  time. 

2.  Whether  the  defendant  is,  in  any  event,  bound  to  account  for  their 
hire  during  the  time  he  has  had  them  in  possession. 

*1.  The  defendant  has  been  in  possession  of  the  slaves  from  r*i*70 
1822  down  to  the  present  time,  and  that  provision  of  the  act  of  ^ 
1712,  Pub.  Laws,  101-2-3,  which  limits  the  bringing  of  the  action  of 
trover  to  four  years  after  the  cause  of  action  arose,  and  also  that  which 
limits  the  right  of  the  mortgager  of  slaves  to  redeem  to  two  years  after 
condition  broken,  when  the  mortgagee  is  in  possession,  are  both  relied  on 
in  support  of  the  affirmation  of  the  first  proposition,  but  neither  of  them 
will  sustain  it.     It  is  a  familiar  rule  that  the  general  provisions  of  the 
statute  of  limitations  will  not  operate  as  a  bar,  unless  the  possession  of 
the  chattel  is  against  the  will,  and  adverse  to  the  rights  of  the  party 
claiming.     Here  the  defendant's  possession  of  the  slaves  commenced  with 
the  consent  of  the  plaintiff's  intestate,  and  by  the  terms  of  the  agreement 
endorsed  on  the  mortgage  he  was  to  hold  subject  to  the  uses,  and  upon 
the  terms  therein  expressed  :  so  that  the  operation  of  the  general  pro- 
visions of  the  statute  must  be  resolved,  not  according  to  the  time  when 
the  defendant  obtained  the  possession,  but  according  to  legal  efTect  of 
the  mortgage  and  the  agreement  thereon  endorsed.     The  time  fixed  by 
the  mortgage  for  the  payment  of  the  money  was   the  first  of  January, 
1824,  and  the  mortgager  not  having  redeemed  within  the  two  years  pre- 
cribed  by  the  act,  the  right  to  redeem,  if  that  depended  on  the  legal  effect 
of  the  mortgage  alone,  would  unquestionably  have  been  barred,  and  it 
was  so  ruled  in  Montgomery  v.  Kerr,  1   Hill,  291.     But  I  concur  with 
the  Chancellor  that  the  legal  effect  of  the  mortgage,  in  this  particular,  is 
counteracted  by  the  agreement  endorsed  upon  it.     By  this,  the  defendant 
acknowledges  to  have  received  the  slaves  mortgaged  "in  lieu  of  the 
interest"  on  the  money  owing,  and  that  they  were  to  continue  in  his  pos- 
session "  until  the  said  notes  be  paid,  upon  which  payment  I  promise  and 
declare  that  I  will  deliver  to  the  said  Thomas  (the  plaintiff's  intestate) 
the  said  slaves,  with  the  issue  and  increase,  if  any  there  should  be,  with- 
out delay  or  default."     Without  this  agreement,  defendant  would  have 
been   bound,  according  to   the  legal   effect  of  the   mortgage,  to   have 
delivered  up  the  slaves  to  the  plaintiffs,  or  their  intestate,  on  the  payment 
of  the  money,  at  any  time  within  two  years  after  condition  broken,  and 
the  agreement  is  an  idle  and  useless  repetition  of  the  terms  of  the  mortgage, 
unless  it  was  intended  to  extend  the  time  of  redemption  beyond  the  time 
limited  by  the  act ;  and  such  is  the  necessary  import  of  the  terms  used. 
The  slaves  were  to  continue  *in  possession  of  the  defendant  in  r*i  itq 
lieu  of  interest  "  until  the  said  notes  be   paid  up,  on  which  pay-  ^ 
ment"  he  was  to  redeliver  them  to  the   plaintiffs'  intestate,  without 


142  SOUTH   CAROLINA   EQUITY   REPORTS.  [*179 

reference  to  the  time  fixed  by  either  the  note  or  mortgage ;  and  it  is 
impossible  to  give  it  any  effect,  but  by  construing  it  into  an  agreement  to 
permit  the  intestate  to  redeem  without  any  limitation  as  to  time  :  the 
limitation  of  two  years  provided  for  in  the  statute  cannot  therefore 
operate  as  a  bar. 

2.  The  agreement  before  referred  to,  expresses  very  clearly  the  inten- 
tion of  the  parties  that  the  services  of  the  slaves  should  be  received  by 
the  defendant  for  the  interest  of  the  money  secured  to  be  paid  by  the 
mortgage,  and  if  that  contract  is  valid,  there  can  be  no  question  that 
defendant  is  not  bound  to  account  for  their  hire.  But  a  supposed 
inequality  between  the  value  of  the  services  of  the  slaves  and  the  amount 
of  interest,  is  the  foundation  of  an  allegation  on  the  part  of  the  plaintiffs 
that  the  contract  was  usurious  and  void,  and  therefore  they  are  entitled  to 
an  account. 

The  statute  against  usury  would  avail  but  little,  if  it  could  be  evaded 
by  the  substitution  of  something  else  than  money  for  the  interest,  with- 
out regard  to  its  value,  and  consequently  all  attempts  of  that  sort  have 
utterly  failed.  When  the  thing  substituted  is  confessedly  of  greater 
value,  or  where,  although  the  value  is  contingent,  the  probable  result  so 
far  exceeds  the  amount  of  interest  as  to  manifest  a  corrupt  intent  to 
secure  a  greater  rate  of  interest  than  is  allowed  by  law,  the  contract  is 
usurious.  Thus,  if  one  lend  £100  to  have  £120,  at  the  year's  end  on  a 
casualty  ;  if  the  casualty  goes  to  the  interest  only,  and  not  to  the  princi- 
pal, it  is  usury,  for  the  party  is  sure  of  the  principal,  come  what  will  of 
the  interest ;  but  if  the  principal  and  interest  are  both  in  jeopardy,  it  is 
not  then  usury — Per  Dodridge  J.  Cro.  Jac.  508  ;  5  Co.  19,  as  cited  in 
Com.  Dig.  Usury,  A. ;  (see  also  Morse  v.  Wilson,  4  D.  &  E.  353.)  So 
that  if  the  value  of  the  services  of  these  slaves  so  far  exceeded  the  amount 
of  interest  as  to  authorize  the  conclusion  that  it  was  a  device  to  avoid 
the  statute  against  usury,  the  contract  is  unquestionably  void.  The  evi- 
dence of  the  value  of  the  hire  at  the  date  of  the  mortgage  is  not  very 
clear.  In  his  answer,  the  defendant  states  that  they  were  then  mere 
children,  eight  or  ten  years  old,  and  not  worth  the  interest ;  and  the  only 
evidence  on  the  point  noticed  in  the  decree,  pointing  directly  to  that 
period,  is,  that  Jack  was  then  a  boy  ;  and  although  the  same  witness  says, 
in  connection  with  it,  that  he  hired  him  at  the  rate  of  seven  dollars  per 
*1801  ^'O'^^^^'  1^6  *evidently  referred  to  a  subsequent  period  ;  so  that  the 
-'  reasonable  inference  is,  that  during  all  the  time  intervening  be- 
tween the  date  of  the  mortgage  and  the  time  of  payment,  the  value  of 
hire  did  not  exceed  the  amount  of  interest — not  so  far,  at  any  rate,  as  to 
authorize  the  inference  that  there  was  an  usurious  intent  in  substituting 
their  services  for  the  interest.  The  contract  was  therefore  legal  in  its 
inception,  and  no  subsequent  adventitious  circumstance,  superinduced  by 
the  neglect  of  the  plaintiff's  intestate  to  pay  the  money  within  the  time 
limited  in  the  mortgage,  could  render  it  illegal ;  and  notwithstanding  the 
apparent  equity  of  requiring  the  defendant  to  account  for  the  subsequent 
increased  value  of  the  hire,  that  would  be  to  substitute  a  new  contract 
between  the  parties — a  power  which  this  Court  explicitly  disclaims. 

So  much  of  the  decree  of  the  Circuit  Court  as  directs  an  account  of 
the  hire  of  the  slaves  is  therefore  reversed,  and  in  all  other  respects  it  is 
affirmed. 

O'Neall,  J.,  and  Harper,  J.,  concurred. 


*180]  CHARLESTON,   FEBRUARY,    1835.  143 


M'Cartney  &  Gordon  and  others,  v.  Jas.  Ferguson,  trustee,  and  M. 

PoGSON  and  wife. 

It  is  indispensably  necessary  by  the  Act  of  1792,  that  a  marriage  contract  should 
specify  the  property  intended  to  he  settled,  or  have  a  schedule  annexed  con- 
taining a  description  thereof,  which  schedule  must  be  signed  and  subscribed 
by  the  witnesses  to  the  contract:  and  therefore,  when  a  marriage  contract  was 
signed  with  a  schedule  annexed,  which  was  neither  signed  nor  witnessed,  and 
they  were  recorded  within  the  legal  period;  and  in  conformity  to  the  contract, 
a  settlement  was  afterwards  entered  into,  which  was  not  recorded  until  after  the 
time  prescribed  by  law,  it  was  held,  that  the  contract  and  schedule  were  not  a 
compliance  with  the  act,  and  the  settlement  not  being  recorded  in  due  time,  the 
property  was  liable  to  the  debts  of  the  husband  subsequent  to  marriage.  [^181] 

Charleston — Heard  by  Chancellor  De  Saussure. 

Henrietta  Wragg  being  possessed  of  some  personal  estate  in  her  own 
right,  and  entitled  to  an  undivided  share  of  her  father's  estate,  was  about 
to  intermarry  with  M.  Pogson.  In  contemplation  of  this  event,  Mr. 
Pogson  entered  into  a  bond  to  the  trustee  on  6th  Feb.,  1805,  in  which, 
after  setting  forth  a  statement  of  Miss  Wragg's  property,  he  covenants  to 
settle  the  same  on  her,  without  liability  for  his  debts.  This  bond  was 
duly  recorded  in  the  office  of  the  Secretary  of  State,  15th  April,  1805. 
A  schedule  was  annexed  to  the  bond,  but  this  was  not  signed  by  the  par- 
ties, or  subscribed  by  the  witnesses  to  the  bond.  On  the  24th  April, 
1806,  a  settlement  was  executed,  which  was  recorded  in  the  Register's 
Office,  15th  July,  1806,  but  not  in  the  office  of  Secretary  of  State  until 
14th  Oct.,  1809. 

In  1827,  the  plaintiffs  sold  Mr.  Pogson  some  articles  proper  for  a 
♦plantation,  and  took  his  note  therefor,  on  which  they  afterwards  r^in-i 
obtained  judgment.  There  being  no  property  to  satisfy  it  at  law,  ^ 
they  filed  this  bill  to  subject  the  trust  estate  to  the  payment  of  their 
demands.  The  Chancellor  decreed  that  the  marriage  contract  of  6th 
Feb.,  1805,  was  void  as  to  creditors,  because  the  schedule  was  not  signed 
and  witnessed  ;  and  the  subsequent  settlement  not  having  been  recorded 
within  the  legal  time,  afforded  no  protection  to  the  property,  and  he  sub- 
jected the  income  of  the  estate  to  the  payment  of  the  plaintiffs'  demands. 

The  defendants  appealed  on  the  grounds : — 

1.  That  the  marriage  contract  of  6th  Feb.,  1805,  was  executed  and 
recorded  according  to  the  provisions  of  law,  and  should  have  been  sus- 
tained. 

2.  That  the  marriage  contract  having  been  properly  executed  and 
recorded,  it  was  unnecessary  to  record  the  deed  of  settlement  of  the  24th 
April,  1806,  except  to  protect  the  property  from  subsequent  purchasers. 

3.  That  by  the  provisions  of  the  settlement,  the  property  was  not  to 
be  liable  for  the  debts  of  the  husband,  and  the  demands  of  the  plaintiffs 
being  of  that  character,  the  bill  should  have  been  dismissed. 

Dunkin,  for  the  appellants. 

O'Neall,  J.  The  act  of  1792,  1st  Faust,  210,  provides,  "that  all 
TYiarriarje  contracts,  deeds,  and  settlements,  to  be  made  after  the  first  day 
of  June  next,  shall  therein  describe,  specify,  and  particularize  the  real  and 
personal  estate  thereby  intended  to  be  included,  comprehended,  conveyed, 


I 


144  SOUTH    CAROLINA   EQUITY    REPORTS.  [*181 

and  passed,  or  shall  have  a  scJuduIe  thereto  annexed,  containing  a  de- 
scription and  the  particulars  of  the  real  and  personal  estate  intended  to 
be  conveyed  and  passed  by  such  marriage  contracts,  deeds,  and  settle- 
ments ;  which  said  schedule  shall  be  thereunto  annexed  and  signed, 
executed  and  delivered  by  the  jyarties  therein  interested  at  the  time  of 
the  signing,  executing,  and  delivering  the  said  marriage  contracts, 
deeds,  and  settlements,  and  he  subscribed  by  the  same  witnesses  who 
subscribed  the  said  marriage  contracts,  deeds,  or  settlements,  and  shall 
be  recorded  therewith,  otherwise,  and  in  default  of  such  schedule,  and 
5^,  nni  recording  thereof  *as  aforesaid,  the  said  marriage  contracts,  deeds, 

-'  and  settlements  shall  be,  and  are  hereby  deemed  and  declared  to 
be  fraudulent,  and  null  and  void  with  respect  to  and  against  creditors 
and  bona  fide  purchasers  and  mortgagees :  provided,  that  where  any 
marriage  settlement  shall  be  made  previous  to  marriage,  nothing  herein 
contained  shall  be  construed  to  extend  to  make  the  property  settled 
thereby  liable  in  default  of  a  schedule,  or  not  being  duly  recorded,  to  the 
payment  of  any  debts  contracted  by  any  husband  previous  to  such  mar- 
riage, but  only  to  such  debts  and  contracts  as  shall  have  been  incurred 
and  made  by  the  said  husband  subsequent  to  the  marriage  taking  place." 
The  result  of  the  case  under  this  legal  provision  depends  upon  the  ques- 
tion whether  the  marriage  settlement  bond,  as  it  is  called  in  the  decree, 
was  executed  and  recorded  in  conformity  to  the  act,  so  as  to  make  it  a 
good  and  valid  antenuptial  marriage  contract  as  against  subsequent  cre- 
ditors. For  the  deed  of  marriage  settlement,  executed  according  to  the 
stipulations  of  the  bond,  was  not  lodged  to  be  recorded  in  the  Secretary 
of  State's  office  until  long  after  the  time  limited  by  the  act  of  '85,  and 
is  therefore  void  as  against  the  creditors  of  the  husband.  So  that  it  is 
necessary  to  look  back  to  the  marriage  contract.  'It  is  in  all  respects 
well  executed  and  recorded,  except  as  to  the  schedule,  which  is  annexed 
to  the  bond ;  but  it  is  not  signed  by  the  parties,  nor  subscribed  by  the 
witnesses  who  subscribed  the  bond.  These  defects,  according  to  the 
plain  words  of  the  act,  render  the  contract  void  as  against  subsequent 
creditors.  There  is  no  room  in  the  construction  of  the  act  to  say  that  it 
has  been  substantially  complied  with,  and  its  ends  answered,  and  there- 
fore that  the  execution  is  sufficient.  For  the  legislature  have  excluded 
all  construction  by  a  supposed  intention  by  the  use  of  plain  words,  de- 
claring that  if  the  contract  wanted  any  of  these  requisites  it  should  be 
void.  In  the  construction  of  a  statute,  I  know  no  rule  more  safe  than 
to  adhere  to  the  sense  of  the  legislature  as  manifested  by  the  plain  and 
literal  meaning  of  the  words  used.  To  adopt  any  other  rule  would  be  to 
legislate,  not  to  construe.  But  if  it  be  necessary  to  look  beyond  a  plain 
reading  of  the  act,  and  to  give  construction  to  it,  by  something  else  than 
the  literal  meaning  of  the  words  used,  I  think  there  will  be  no  difficulty 
in  arriving  at  the  same  conclusion  by  other  means.  I  think  with  the 
Chancellor  that  were  it  not  for  the  act,  that  the  annexation  of  the  sche- 
dule to  the  bond  and  reference  to  it  therein  would  make  it  a  part  of  it, 
*1831  ^"*^  '^^^  ^execution  of  the  bond  would  cover  the  schedule  :  the 

-■  act  excludes  this  construction,  by  not  only  directing  it  to  be  an- 
nexed, but  also  that  it  shall  be  signed,  executed,  and  delivered  by  the 
parties,  and  subscribed  by  the  same  witnesses  who  subscribe  the  contract. 
This  shows  that  notwithstanding  its  annexation,  the  legislature  regarded 


*183]  CHARLESTON,   FEBRUARY,    1835.  145 

it  as  a  separate  and  distinct  instrument  from  that  to  which  it  was  annexed. 
We  are  therefore  not  at  liberty  to  make  the  execution  and  attestation  of 
the  bond,  the  execution  and  attestation  of  the  schedule.  However  unrea- 
sonable this  may  appear  on  the  first  blush,  yet,  on  reflection,  it  will  be 
seen  that  the  legislature  may  be  very  well  justified  in  adopting  such  pro- 
visions. Their  object  was  to  prevent  the  possibility  of  frauds  in  the 
execution  of  marriage  settlements.  A  schedule  annexed  by  tape,  or  seals, 
or  wafers,  might  easily  be  removed  and  another  substituted,  if  it  had 
neither  the  signatures  of  the  parties,  nor  the  attestation  of  the  witnesses 
to  identify  it  and  to  prevent  substitution.  Such  a  possibility  most  prob- 
ably induced  the  legislation  in  this  respect :  and  on  some  other  occasion 
we  may  admire  more  this  legislative  forecast,  than  we  are  now  disposed 
to  condemn  it  as  unnecessary  and  hard  legislation. 

I  am  hence  satisfied  that  the  marriage  settlement  bond  or  contract  is 
void,  and  cannot  protect  the  property  attempted  to  be  settled  from  the 
payment  of  the  debts  due  by  Milward  Pogson  to  the  plaintiffs.  For,  as 
the  learned  Chancellor  thought,  (although  he  suffered  his  sympathies  for 
Mrs.  Pogson  and  her  children  to  lead  him  to  a  different  conclusion,)  it  is 
a  refinement  not  to  be  sustained,  to  contend,  that  notwithstanding  the 
marriage  contract  is  void,  as  against  creditors,  that  yet  being  good  be- 
tween the  parties,  it  will  prevent  the  husband's  marital  rights  from 
attaching  on  the  property,  and  thus  save  it  from  being  made  liable  to  pay 
the  husband's  debts.  The  contract  is  void  as  against  the  creditors ;  as 
against  them  it  is  the  same  as  if  none  existed,  and  the  wife's  property  is, 
so  far  as  they  are  concerned,  in  the  possession  of  the  husband,  without 
any  thing  to  prevent  all  his  legal  rights  from  arising  in  and  attaching  to 
it.  Her  real  estate  is  his  during  coverture,  and  her  personal  property 
vests  in  him  jure  mariti.  For  the  marriage  contract  cannot  even  be 
read  against  his  creditors.  These  views  would  make  the  corjius  of  the 
estate  liable  to  the  plaintiffs'  demands  :  but  as  they  are  content  with  the 
Chancellor's  decree  against  the  income,  there  is  no  necessity  to  give  them 
any  further  remedy.  It  *is  ordered  that  Chancellor  De  Saus-  r^ig^ 
sure's  decree  be  affirmed.  ^ 

Johnson,  J.,  and  Harper,  J.,  concurred. 


George  Edwards,  and  others  v.  M.  S.  Barksdale,  and  others.    Henry 

Bona  v.  the  same. 

Testator  by  his  will  directed,  that  his  estate  should  accumulate  for  the  benefit  of 
his  son  and  daughter,  "then  on  either  of  them  arriving  of  age,  or  on  the  marriage 
of  my  daughter  prior  to  such  period,  that  it  be  equally  shared  between  them, 
■which  they  and  their  issue  legally  begotten  are  to  enjoy  forever;  but  in  case  of 
the  demise  of  my  daughter,  that  the  negroes  I  got  through  her  mother  ilo  revert 
to  the  children  of  P.  S.  L.;  and  likewise  that  such  negroes  I  got  by  the  mother 
of  my  son  to  revert  to  II.  B.:"  and  by  another  clause  declared  "that  in  case  of 
the  death  of  my  daughter  and  son  prior  to  their  being  of  age,  or  having  issue, 
that  the  whole  of  my  estate  be  given  to  G.  E.  &  E."  E.:"—JIcld,  that  the  following 
is  the  true  construction: — 1st.  If  the  daughter  should  die  before  marriage  or 
maturity,  that  the  negroes  received  by  the  testator  from  her  mother  should  revert 


146  SOUTH   CAROLINA    EQUITY    REPORTS.  [*184 

to  the  children  of  P.  S.  L.;  2cl.  That  if  his  son  should  die  before  the  same  event 
■without  children,  the  negroes  received  by  liis  mother  should  go  to  H.  B  :  3d. 
Tliat  if  both  should  die,  the  daughter  before  marriage  or  full  age  and  the  son 
under  age  and  without  issue,  then  that  the  whole  remaining  estate  should  go  to 
G.  E.  &  E.  E.  [*102] 
The  words  of  the  devise  to  testator's  son  and  daughter,  will  not  create  a  fee  con- 
ditional in  the  real  estate.     The  doctrine  of  fees  conditional  considered.  [*196] 

Coosawhatchie. — February,  1833. 

Harper  J.  (sitting  as  Chancellor.)  The  will  of  George  Barksdale 
executed  in  1798,  contains  the  following  clauses  : — 

"  Respecting  my  real  and  personal  estate,  consisting  of  land  and  ne- 
groes, now  in  my  possession,  I  desire  that  the  whole  be  kept  together 
and  improved  to  the  utmost  of  the  abilities  of  my  executors,  for  the 
mutual  benefit  of  my  daughter,  Mary  White  Barksdale,  and  my  son 
Thomas  Henry  Barksdale,  (requesting  that  they  may  have  the  best  edu- 
cation that  possibly  can  be  had  in  South  Carolina,)  then  on  either  of 
them  arriving  of  age,  or  on  the  marriage  of  my  daughter,  prior  to  such 
period,  I  direct  that  the  said  estate  with  all  its  accumulation,  may  be 
equally  shared  and  divided  between  them,  which  they  and  their  issue 
legally  begotten,  are  to  enjoy  forever ;  but  in  case  of  the  demise  of  my 
daughter,  my  will  is,  that  all  such  negroes  as  I  am  possessed  of  through 
her  mother,  do  revert  to  the  children  of  Peter  Samuel  Lefitt,  of  Savan- 
nah, to  them  and  their  heirs  forever;  and  likewise  that  all  such  negroes 
as  I  am  possessed  of  through  the  mother  of  my  son,  do  revert  to  Henry 
Bona,  to  him  and  his  heirs  forever. 

"  Also  in  addition,  it  is  further  my  will,  that  in  case  of  the  death  of 
my  daughter  Mary,  and  my  son  Thomas,  prior  to  their  being  of  age,  or 
having  issue,  that  the  whole  of  my  estate  be  given  to  George  Edwards, 
and  Eliza  Edwards,  his  sister,  to  them  and  their  heirs  forever." 

Mary  White  Barksdale  died  in  1808,  under  age,  and  without  issue,  not 
having  been  married. 

Thomas  Henry  Barksdale  came  of  age,  and  the  executor  surrendered 
to  him  the  whole  estate.  He  died  in  1832,  not  having  had  any  issue. 
*1S'S1  ^'I'lis  plaintiff,  George  Edwards,  claims  in  his  own  right,  and  he 
-'  and  the  plaintiff,  Mary  Holbrook,  as  the  brother  and  sister  and 
next  of  kin  of  Eliza  Edwards,  under  the  limitation  of  the  will  to  them. 
They  also  claim  as  next  of  kin  of  Thomas  Barksdale,  in  case  the  limita- 
tion fails. 

Henry  Bona,  the  plaintiff  to  the  second  bill,  claims  under  the  bequest 
to  hiui,  in  case  of  the  demise  of  Mary.  He  also  claims  the  whole  estate 
as  next  of  kin  of  Thomas  Barksdale,  he  being  in  equal  degree  with  the 
other  plaintiffs,  and  being  of  the  whole,  while  they  are  of  the  half  blood. 

The  first  thing  to  be  done  is  to  discover,  from  the  construction  of  the 
will,  what  dispositions  the  testator  intended  to  make,  and  next,  what  effect 
the  law  will  give  to  these  dispositions. 

The  devise  of  the  estate  to  Mary  and  Thomas  Barksdale,  "which  they 
and  their  issue  lawfully  begotten  are  to  enjoy  forever,"  would  certainly  give 
them  in  England  an  estate  tail  in  the  lands,  and  in  this  country,  gives 
them  a  fee  simple  conditiofial,  and  the  personal  estate  absolutely. 

The  provision,  "but  in  the  case  of  the  demise  of  my  daughter,  my  will 
is,"  &c.,  if  the  words  were  taken  alone  would  seem  to  import,  that  at  what- 


*185]         CHARLESTON,  FEBRUARY,  1835.  147 

ever  period  of  her  life  she  should  die,  whether  with  or  without  issue  the 
limitation  should  take  effect.     This  would  seem  to  restrict  her  interest  to 
a  life  estate,  and   be  inconsistent  with  the  previous  limitation  to  her 
issue.     The  clause  would  also  seem  inconsistent  with  the  subsequent  limi- 
tation of  the  whole  estate,  to  George  and  Eliza  Edwards,  in  the  event  of 
the  death  of  both  children  without  issue.     It  is  my  duty  to  reconcile  these 
inconsistencies  if  possible,  so  as  to  give  effect  to  every  part  of  the  will  ;  I 
find  it  difficult  to  do  so,  but  perhaps  it  is  not  utterly  impossiijle.     The 
most  I  can  make  of  it  is  this :  the  words  "  giving  to  Mary  and  her  issue" 
are  perfectly  clear  :  when,  therefore,  we  find   a  limitation  once  in  the 
event  of  her  death,  it  is  natural  to  imply  a  death  without  issue.     Looking 
over  the  whole  will,  and  observing  the  terms  which  the  testator  has  used 
in  the  subsequent  clause,  making  a  similar  limitation,  we  may  be  justified 
in  applying  to  the  former  disposition  the  qualification  which  the  testator 
has  annexed  to  the  latter,  so  as  to  make  it  read  "in  case  of  the  demise  of 
my  daughter,  prior  to  her  being  of  age,  or  having  issue."     From  the 
words  immediately  following  the  provision  for  a  division  of  the  estate,  it  is 
probable  that  the  testator  contemplated  the  demise  of  *his  daughter  r:).  i  ©^ 
before  the  time  of  the  division  :  as  if  he  had  said  "  if  she  shall  be  L 
then  dead."     Then  how  is  this  consistent  with  the  subsequent  limitation 
of  the  whole  estate  to  George  and  Eliza  Edwards  ?     I  think  these  words 
must  be  taken  subject  to  the  previous  disposition  in  favor  of  the  children 
of  Lefitt  and  Bona.     In  the  event  of  the  daughter's  death,  the  negroes  to 
go  as  directed.     All  the  rest  of  the  daughter's  estate  would  go  to  the 
son,  for  the  terms  of  the  will  are  sufficient  to  create  cross  remainders,  if 
he  did  not  take  it  by  law.     Of  those  negroes,  the  testator  had  disposed 
definitively  then  ;  if  the  son  should  die  also  prior  to  being  of  age  or  having 
issue,  the  ivhole  estate,  that  is,  the  whole  estate  in  the  hands  of  the  son 
remaining  to  be  disposed  of,  to  go  to  George  and  Eliza  Edwards.     I 
cannot  think  of  any  other  reasonable  and  consistent  meaning  to  give  to 
the  provisions  of  the  will.     There  would  be  no  difficulty  in  applying  the 
same  construction  if  the  daughter  had  lived  longest. 

Then  we  come  to  examine  the  goodness  of  the  limitation,  if  the  testa- 
tor's children  should  die  prior  to  being  of  age  or  having  issue.  With 
respect  to  the  personal  estate  I  have  no  doubt  of  the  goodness  of  the 
limitation.  The  words  do  not  import  an  indefinite  fiiilure  of  issue,  less 
so  than  the  common  case,  where  the  words  are,  "  if  he  should  die  without 
leaving  issue."  And  I  should  have  as  little  doubt  respecting  the  land, 
if  it  were  not  devised  in  fee.  The  limitation  would  be  as  clearly  good 
as  in  Gulliver  v.  Wickett,  Pells  v.  Brown,  or  Porcher  ;;.  Bradly.  What 
I  do  doubt,  however,  is  whether  these  words  used  after  giving  an  estate 
tail,  in  England,  would  not  be  construed  a  remainder  generally  expectant 
on  the  estate  tail.  In  Brownsword  v.  Edwards,  2  Ves.  sen.  243,  the  devise 
was  to  trustees  till  John  Brownsword  should  obtain  the  age  of  twenty- 
one  years,  and  if  he  should  live  to  obtain  that  age,  or  have  issue,  then  to 
him  and  the  heirs  of  his  body  ;  but  if  he  should  die  under  age  and  with- 
out issue,  then  to  certain  collateral  branches  of  his  family.  John 
Brownsword  lived  to  be  of  age,  but  afterwards  died  without  having  had 
issue.  It  was  contended  that  this  limitation  was  an  executory  devise, 
depending,  according  to  the  liberal  import  of  the  terms,  on  the  event  of 
his  dying  under  age  and  without  issue,  and  that  having  come  of  age,  it 


*187] 


148  ,  SOUTH   CAROLINA   EQUITY   REPORTS.  [*186 

could  never  take  effect  But  Lord  Hardwicke  held  it  to  be  a  remainder 
after  the  estate  tail  He  adds  however  his  belief,  that  if  the  devise 
had  been  to  John  and  his  heirs,  the  construction  could  not  be  made  ;  and 
refers  to  the  cases  in  *which,  after  a  devise  in  fee,  the  limitation 
was  on  the  event  of  the  devisee's  dying  under  age  or  without  issue, 
in  which,  to  effectuate  the  intention,  '  or '  was  construed  '  and. '  The 
cases  of  Fairfield  v.  Morgan,  2  Bos.  &  Pul.  N.  R.  38,  and  Eastman  v. 
Baker,  1  Taunt.  174,  and  others  in  which  such  construction  has  been 
made,  were  all  cases  of  devise  in  fee. 

I  had  occasion  to  consider  this  subject  in  the  case  of  Bailey  v.  Sea- 
brook,  decided  by  me  in  Charleston,  and  I  have  not  yet  been  able  to 
overcome  the  difficulty  which  I  then  experienced  in  giving  effect  to  such 
a  limitation.  I  have  found  no  case  in  which  such  a  limitation  has  had 
effect,  except  as  a  remainder  after  an  estate  tail ;  though  Mr.  Fearne, 
whose  suggestions  are  always  entitled  to  respect,  seems  to  intimate  that 
there  might  be  such  an  one.  It  may  seem  strange  that  the  clear  inten- 
tion of  a  testator,  which  does  not  violate  the  policy  of  the  law  by  its 
tendency  to  create  a  perpetuity,  should,  for  technical  reasons,  fail  of 
effect.  Yet,  how  can  1  disregard  the  rule,  so  emphatically  said  in  the 
cases  to  have  always  prevailed  without  any  exception  to  the  contrary, 
that  "  where  a  contingency  is  limited  to  depend  on  an  estate  of  freehold, 
which  is  capable  of  supporting  a  remainder,  it  shall  never  be  construed  to 
be  an  executory  devise,  but  a  contingent  remainder  only,  and  not  other- 
wise." I  will  not  say,  however,  though  technical  difficulties  interpose 
here  also,  that  it  may  not  be  possible  to  give  effect  to  such  a  limitation  as 
a  remainder  after  a  life  estate,  which  in  fact  it  seems  to  be.  Supposing, 
however,  that  this  must  be  construed  a  general  remainder  after  a  fee 
conditional,  I  have,  in  the  same  case  of  Bailey  v.  Seabrook,  givenjmy  rea- 
sons on  the  preponderance  of  authority  for  the  opinion  that  a  remainder 
cannot  be  limited  after  a  fee  simple  conditional,  and  must  be  regarded  as 
void. 

But  in  the  present  case,  I  am  of  opinion  that  the  testator's  children 
took  a  fee  simple  absolute,  not  by  the  will,  but  by  descent — and  conse- 
quently that  the  limitation  to  George  and  Eliza  Edwards  may  have  effect 
as  an  executory  devise  of  an  estate,  to  arise  on  a  future  contingency. 
The  testator's  children  were  his  heirs  at  law.  In  the  case  of  Adams  v. 
Chaplin,  1  Hill's  Ch.  265,  decided  by  me  at  Coosawhatchie,  I  had  occasion 
to  consider  the  effect  of  a  devise  to  an  heir  at  law,  with  a  void  limitation  or 
no  limitation,  of  the  possibility  of  reverter.  That  case  I  believe  is  still  before 
the  Court  of  Appeals  ;  at  all  events  I  am  not  aware  of  any  decision  upon 
it,  and  shall  therefore  throw  out  such  additional  ideas,  as  occur  to  me 
*1881  on  *the  subject.  I  have  re-examined  that  opinion,  with  all  the 
-■  attention  in  my  power,  and  have  found  nothing  to  alter  it;  I  think 
that  in  case  of  such  a  devise,  the  fee  conditional  must  be  held  to  merge  in 
the  right  of  reverter ;  or,  to  speak  more  accurately,  that  the  heir  takes  by 
descent  and  not  by  devise.  The  case  of  Dunn  v.  Greene,  3  Pr.  Wms. 
10,  is  in  point.  A  copyholder  in  tail  accepted  from  the  lord,  a  grant  of 
the  fee  simple.  The  Chancellor  said,  that  unless  it  were  expressly  found 
that  the  custom  of  the  manor  allowed  of  entails,  this  was  a  fee  simple 
conditional,  and  plainly  merged  in  the  fee.  I  think  this  coincides  with 
the  rule  which  Mr.  Hargrave,  in  his  note  Co.  Lit.  12,  lays  down  as  the 


*188]  CHARLESTON",    FEBRUARY,    1835.  1-19 

result  of  the  cases  to  which  he  refers,  "  that  whenever  a  devise  gives  to 
the  heir,  the  same  estate  in  quality  as  he  would  take  by  descent,  he  shall 
take  by  the  latter."  Now  the  authorities  are  clear,  that  the  fee  ^^iuiple 
conditional  is  of  the  same  quality  as  the  fee  simple  absolute,  thuuu;h  it 
may  differ  in  quantity.  Coke,  on  commenting  on  Littleton's  text,  "And 
note  that  a  man  cannot  have  a  more  large  or  greater  estate  of  inheritance 
than  fee  simple,"  observes  :  "this  doth  extend  as  well  to  fee  simple  con- 
ditional, and  qualified,  as  to  fee  simple  pure  and  absolute;  for  our  author 
speaketh  here  of  the  ainpleness  and  greatness  of  the  estate,  and  not  of  the 
perdurableness  of  the  same.  And  he  that  hath  a  fee  simple  conditional 
and  qualified,  hath  as  ample  and  great  an  estate,  as  he  that  hath  a  fee 
sim]ile  absolute  ;  so  as  the  diversity  appeareth  between  the  quantity  and 
quality  of  the  estate." 

In  Clerk  i*.  Smith,  2  Salk.  241,  the  testator  devised  to  his  heir  at  law, 
and  his  heir  on  condition,  that  he  should  pay  £200  to  such  person  as  his 
mother  should  appoint,  and  it  was  held  that  he  took  by  descent.  I  have 
not  the  means  of  referring  to  some  of  the  authorities  there  quoted,  but  in 
Comyn's  Dig.  Tit.  Devise,  R.  it  is  said,  referring  to  Lat.  798,  that  the 
heir  takes  by  descent,  "  though  it  be  devised  to  the  heir,  subject  to  a 
charge,  for  that  does  not  make  an  alteration  of  the  estate,"  "or  subject 
to  a  contingency  upon  which  another  shall  have  it,  for  it  descends  in  the 
meantime." 

There  is  quoted  from  Cro.  Car.  IGl,  that  he  takes  by  devise,  if  the 
estate  be  given  to  an  heir,  "  upon  condition  to  pay  debts,  and  for  non- 
payment to  another."  But  in  Clerk  v.  Smith,  it  is  said,  Treby,  C.  J.,  and 
Powell,  J.,  denied  this  case  to  be  law,  and  in  Comyn  is  quoted  "Court 
per  Holt,  for  the  heir  takes  by  descent,  and  upon  failure  of  payment,  the 
other  shall  have  it  byway  of  executory  *devise."  In  Bacon's  r;icioc) 
Abridgment  Tit.  Descent  E.  it  is  said,  "if  a  man  devises  land  to  L 
his  eldest  son  and  his  heirs,  paying  £20  a-piece  to  his  younger  children 
at  their  ages  of  twelve,  and  upon  non-payment  of  the  legacies,  devises  the 
land  to  his  younger  children  and  their  heirs,  the  eldest  son  is  in  by 
descent;"  referring  to  Moore,  644,  Cro.  Eliz  833,  919,  920.  In  ail 
these  instances,  as  in  the  case  of  the  devise  of  the  fee  simple  conditional, 
the  fee  is  given  with  a  possibility  annexed,  an  estate  defeasible  on  a  con- 
tingency. This  accords  with  the  general  rule  of  law,  and  can  never 
defeat  any  valid  disposition  by  way  of  executory  devise,  for  it  is  of  the 
definition  of  an  executory  devise,  that  by  it  an  estate  may  be  limited  to 
arise  in  future,  leaving  the  land  in  the  meantime  to  descend  to  the  heir. 

The  case  of  Goodright  v.  Sealle,  3  Will.  29,  does  not  disagree  with 
this.  In  that  case,  testator  devised  to  his  heir  at  law,  providing  that  if 
he  should  die  without  issue  living  at  his  death,  the  estate  should  go  to  his 
mother.  It  was  perfectly  immaterial  whether  the  heir  took  by  descent  or 
not.  On  the  authorities,  I  have  referred  to,  I  have  no  doubt  but  that  he 
was  in  by  descent,  and  there  is  nothing  in  the  case  to  contradict  this. 
But  this  did  not  affect  the  validity  of  the  executory  devise  to  the  mother. 
The  person  who  took  at  his  death  without  issue,  took  not  as  ao  heir  of 
the  testator,  but  as  a  purchaser  under  the  will.  But  suppose  the  testator 
had  devised  to  the  heir  upon  condition  of  his  having  issue,  without  any 
limitation  over  in  the  event  of  a  breach  of  the  condition.  The  case  of 
Whalev  v.  Cox,  2  Eq.  Ca.  Ab. — was  one  in  which  the  testator  gave  to 
'Yol.  I.— 33 


*190] 


150  SOUTH    CAROLINA    EQUITY    REPORTS.  [*1&9 

his  heir  on  condition  he  should  pay  £500.  It  was  clear  he  was  in  by- 
descent,  and  the  condition  void,  as  none  but  the  heir  could  take  advan- 
tage of  the  condition.  Or  suppose  the  executory  devise  to  have  been 
void  on  account  of  the  remoteness  of  the  contingencies  on  which  it  was 
limited  ;  is  it  not  plain  that  the  estate  of  the  heir  would  have  been  an  ab- 
solute indefeasible  fee  simple  ?  Is  there  any  doubt  about  the  rule  that 
the  heir  will  take  even  against  the  intention,  what  is  not  effectually  dis- 
posed of.  Whatever  estate  is  given  to  the  heirs  whether  for  life,  or 
howsoever  otherwise  qualiBed,  or  whatever  condition,  contingency,  or 
possibility  is  annexed  to  it,  yet  if  there  be  no  eifectual  disposition,  is  it 
not  manifest  the  heir  must  take  absolutely  and  take  by  descent  ?  Then 
if  it  be  true  that  a  remainder  limited  after  a  fee  conditional  is  void,  does 
it  not  follow  that  the  heir  after  a  devise  to  *him  of  that  estate, 
must  take  absolutely  by  descent  ?  The  passage  in  Bracton,  "  Item 
poterit  pluribus  fieri  donatio  per  modum  simul  et  succim,"  &c.,  does 
seem  to  show,  that  in  his  opinion  a  remainder  might  be  limited  after 
an  estate  in  fee  simple  conditional.  Yet  if  that  be  the  true  construction, 
I  think  the  authority  is  overruled  by  the  whole  current  of  more  modern 
decisions. 

I  think  error  has  arisen  from  some  notion  of  an  intention  of  the  testa- 
tor in  favor  of  his  blood,  a  more  distant  rather  than  intermediate  heirs — 
which  intention  is  to  be  favored  ?  This  is  unknown  to  the  law,  which 
regards  every  heir  successively,  as  representing  the  ancestor,  clothed  with 
the  same  rights,  and  standing  in  the  same  relation.  It  is  for  this  reason 
that  even  in  the  case  of  an  estate  tail  which  is  said  to  be  privileged  from 
merger  by  construction  from  the  statute,  where  the  tenant  in  tail  has  the 
immediate  right  of  reversion  or  remainder,  he  may  bar  it  by  fine  with- 
out recovery.  Harg.  n.  to  Co.  Lit  121.  •  Though  the  person  claiming 
at  the  termination  of  the  estate  tail  takes  as  the  heir  of  the  donor  or  first 
purchaser,  yet  he  so  takes  through  the  intermediate  heir,  as  to  be  estopped 
by  his  act.  Mr.  Hargrave  says,  "none  can  derive  title  to  the  estate, 
except  as  his  privies  or  heirs,  in  which  character  his  fine  is  an  immediate 
bar  to  them." 

The  children  of  George  Barksdale  taking  an  absolute  fee  simple, 
I  think  there  is  a  good  executory  devise  to  George  and  Eliza  Edwards. 

To  the  bill  of  Henry  Bona,  the  lapse  of  time  is  relied  on  as  a  bar  to  his 
demand.  The  present  plaintiff  was  not  the  legatee,  but  his  father,  of  the 
same  name.  From  the  view  I  have  taken,  I  think  his  right  accrued  upon 
the  death  of  Mary  White  Barksdale,  in  1808,  so  that  more  than  twenty 
years  have  elapsed  from  that  time  to  the  filing  of  the  bill.  If  Henry 
Bona,  the  father,  had  lived  to  the  present  time,  it  would  be  a  question 
between  him  and  the  executor,  whether  he  was  not  barred  by  lapse  of 
time.  There  may  be  a  question  too,  whether  Thomas  Barksdale's  pos- 
session was  not  adverse  from  the  time  of  the  estate's  being  surrendered  to 
him,  so  as  to  mature  his  title  by  the  statute  of  limitations.  But  the 
present  plaintiffis  an  infant;  though  it  is  said  his  father  was  living  at  the 
death  of  Mary  White  Barksdale,  yet  it  does  not  appear  from  anything 
before  me,  at  what  time  he  died,  nor  docs  it  appear  at  what  time  Thomas 
j^,qi-|  Barksdale  took  possession  of  the  estate.*  I  must  direct  an 
-^  inquiry  to  ascertain  these  points,  and  reserve  this  part  of  the  case 
for  the  coming  in  of  the  report. 


*191J 


CHARLESTON",    FEBRUARY,    1835.  151 


The  plaintiff,  Bona,  is  not  the  proper  person  to  sustain  the  bill.  Tiie 
legal  representative  of  his  father,  executor  or  administrator,  should  bo  a 
I)arty  to  it.  Leave  may  be  given  however  to  amend  the  bill,  making  the 
proper  party  :  and  it  is  ordered  accordingly. 

It  is  ordered  and  decreed  that  the  defendant,  Martha  Sarah  Barksdale, 
administratrix  of  Thomas  Henry  Barksdale,  account  before  the  Commis- 
sioner for  the  personal  estate  of  her  intestate,  except  such  slaves  as  the 
testator,  George  Barksdale,  derived  from  his  marriage  with  the  mother 
of  his  daughter,  Mary  White  Barksdale,  and  of  his  sou,  Thomas  Henry 
Barksdale,  respectively ;  and  that  upon  such  accounts  being  had,  she  pay 
and  deliver  over  to  the  plaintiffs,  George  Edwards,  Daniel  Holbrook,  and 
Mary,  his  wife,  the  whole  of  the  estate  which  her  said  intestate  derived 
from  the  will  of  his  father,  George  Barksdale,  as  aforesaid,  and  that  she 
also  deliver  to  the  said  plaintiffs,  all  the  muniments  and  evidences  of  the 
title  of  the  real  estate  of  her  said  intestate  derived  in  like  manner.  The 
costs  of  the  first  bill  stated  to  be  paid  out  of  the  said  estate. 

The  defendants  appealed  from  this  decree.  The  cases  were  elaborately 
argued  by  Dunkin,  Bailey  and  Hunt,  for  the  appellants  :  and  Petigru 
and  King,  for  the  appellees. 

The  following  authorities  were  cited  and  commented  on  by  the  counsel 
for  the  appellants :  Adams  v.  Chaplin,  1  Hill's  Ch.  265  ;  Scanlan  v. 
Porter,  1  Bail.  427;  Bedon  v.  Bedon,  2  Bail.  231;  1  Hill's  Ch.  39;  2 
Cruise  Dig.  461:  6  lb.  183;  Tit.  38,  chap.  9,  sec.  18-24;  1  Taunt,  174; 
3  Roper  on  Leg.'  291,  371 ;  6  Yes.  341 ;  7  lb.  454 ;  Co.  Lit.  20,  a.  20, 
b.  Prest.  on  Est.  263;   10  John.  Rep.  19. 

And  the  following  on  the  part  of  the  appellees  :  3  Eq.  Rep.  251  ;  2 
Saund.  280  ;  2  Yes.  sen'r.  243  ;  2  New  Rep.  38  ;  2  Yern.  388  ;  Cro. 
Eliz.  525  ;  3  Cruise,  461  ;  1  Russ.  and  Milne,  553  ;  2  Strange,  1251 ;  4 
Yes.  160;  1  Bro.  Ch.  Rep.  393;  Ray.  252;  Cowp.  31,  797;  2  P.  W. 
69;  3  Yes.  536;  3  Bro.  Ch.  Rep.  465;  6  T.  R.  30;  3  Yes.  450;  18 
John.  Rep.  368;  1  Hall,  184;  2  Mass.  R.  554;  6  John.  Rep.  54;  2 
Bin.  252  ;  Cro.  Jac.  185. 

O'Neall,  J.  In  these  cases,  as  in  Bedon  v.  Bedon,  the  question  which 
decides  the  whole  matter  is,  what  estate  did  Thomas  *Henry  rt.\(\9 
Barksdale  take  under  the  will  of  his  father,  George  Barksdale,  '- 
deceased.  This,  in  its  development  and  decision,  will  require  us  to  give 
consideration  to  the  will.  1st.  As  to  the  bequest  in  favor  of  Henry 
Bona,  and  the  executory  devise  to  George  and  Eliza  Edwards.  2d.  If 
the  last  should  fail,  then  as  to  the  estate  of  Thomas  Henry  Barksdale  in 
the  land  of  the  testator  under  his  will,  whether  it  be  a  fee  conditional,  or 
a  fee-simple. 

1.  A  general  rule  of  construction  is,  that  the  whole  will  should  be  con- 
strued together,  so  that  we  may  arrive  at  the  entire  intention  of  the  tes- 
tator, not  at  unconnected  parts  of  it  This  rule  applies  where  there  are 
many  clauses,  unless  indeed  it  should  be  the  case  that  the  same  article  of 
property  is  given  by  different  clauses  to  different  i)ersons  ;  in  that  case 
the  last  clause  is  regarded  as  the  last  disposition,  revoking  all  which  had 
gone  before  it.  This  will,  however,  it  seems  to  me,  is  but  one  devise  or 
bequest,  contained  in  a  single  clause,  and  must,  therefore,  be  more  imme- 
diately under  the  operation  of  the  general  rule  which  I  have  stated,  than 


152  SOUTH    CAROLINA    EQUITY    REPORTS.  [*192 

it  would  have  been  if  it  had  consisted  of  many  clauses.  In  all  parts  and 
ali  its  ])rovisions,  it  has  reference  to  the  period  of  division  which  it  fixes. 
The  testator  directs  the  whole  estate  to  be  kept  together,  and  improved 
for  the  l)enefit  of  his  daughter  and  son,  until  either  should  come  of  age, 
or  until  the  marriage  of  his  daughter  before  maturity,  then  he  directs  the 
whole  estate  to  be  shared  and  divided  between  them  This  provided  for 
his  children  during  minority,  and  also  for  both,  when  they  or  the  daughter 
only  had  entered  upon  the  cares  and  responsibilities  of  a  life  unrestrained 
by  a  parent's,  guardian's,  or  an  executor's  care.  As  would  be  natural, 
after  making  such  a  provision,  the  thought  seems  to  have  arisen  in  his 
mind — "  one  or  both  of  my  children  may  die  without  childi'en  before  the 
time  which  I  have  fixed  for  the  division  ;  in  either  case,  what  is  to  be 
done  ?"  The  will  proceeds  to  answer  the  question,  by  providing,  1st.  If 
the  daughter  should  die  before  marriage  or  maturity,  then,  that  the 
negroes  received  by  the  testator  in  marriage  with  her  mother,  should 
revert  to  the  children  of  Peter  Samuel  Lefitt,  of  Savannah  :  2d.  If  his 
son  should  die  before  the  same  event,  without  children,  then,  that  the 
^,Qq-,  negroes  received  by  the  testator*  in  marriage  with  the  mother  of 
-^  his  son,  should  revert  to  Henry  Bona  :  3d.  If  both  should  die, 
the  daughter,  before  marriage  or  before  attaining  to  full  age,  and  the  son 
under  age  and  without  issue,  then  that  the  Avhole  remaining  estate  should 
be  given  to  George  Edwards  and  Eliza  Edwards. 

I  have  thus  stated  together  the  construction  of  the  testator's  will, 
according  to  my  reading  of  it,  and  it  seems  to  me  so  perfectly  obvious, 
that  it  would  be  almost  unnecessary  to  urge  an  argument  in  support  of  it. 
But  the  cases  are  of  so  much  expectation  to  the  parties,  and  may  be  of 
some  importance  to  the  profession  in  confirming  previous  decisions,  that 
I  will,  as  well  as  I  am  able,  and  as  briefly  as  I  can,  state  the  legal  reasons 
for  the  construction.  On  looking  to  the  will,  it  will  be  seen  that  the 
testator,  after  directing  the  division,  adds,  "which  they  and  their  issue, 
legally  begotten,  are  to  enjoy  forever  ;  but  in  the  case  of  the  demise  of 
my  daughter,  my  will  is  that  all  such  negroes  as  I  am  possessed  of  through 
her  mother,  do  revert  to  the  children  of  Peter  Samuel  Lefitt  "  The 
words  preceding  this  contingent  bequest,  show  that  the  testator,  in  look- 
ing to  the  death  of  his  daughter,  contemplated  the  possibility  that  that 
event  might  take  place  without  issue,  and  if  so,  and  it  took  place  before 
her  marriage,  then,  that  the  negroes  of  her  mother  should  go  over.  For 
it  is  obvious  on  reading  this  part  of  the  will,  in  connection  with  that 
which  preceded  it,  directing  the  division,  that  it  was  a  mere  division  for 
what  might  occur  before  it  took  place.  If  this  was  not  so,  the  limitation 
over  to  the  Lefitts  would  be  on  a  general  failure  of  issue,  and  would  be 
void  on  account  of  its  remoteness.  The  construction  which  I  have 
resorted  to  in  this  respect  is  admissible,  inasmuch  as  it  sustains  and  does 
not  defeat  the  bequest.  If,  however,  the  Ijequest  could  even  take 
effect  at  the  death  of  the  daughter  happening  after  marriage,  and  thus 
escape  the  objection  for  remoteness,  then  the  result  might  be  that  the 
Lefitts  would  not  find  a  single  one  of  the  negroes  bequeathed  to  them  in 
remainder  in  her  possession.  For,  in  the  division  the  executors  might 
have  delivered  these  negroes  to  her  brother;  (the  will  imposes  no  restraint 
in  this  respect.)  The  Lefitts  might,  if  the  construction  thus  suggested 
was  right,  recover  them  from  him,  and  he,  under  his  father's  will,  not  be 


*193]  CnARLESTON,    FEBRUARY,    1835.  153 

entitled  to  licr  share  of  her  father's  estate.  For  the  will  only  would  ^ive 
to  him  or  her  a  cross-remainder  in  the  event  of  her  death  before  marriar"-e 
or  full  age,  or  his  death  under*  age  and  without  issue.  This  r^^f,, 
absurd  consequence  shows  that  such  a  construction  cannot  be  L  ^•^•* 
given  to  the  bequest  over  to  the  Lefitts,  and  that  this,  as  well  as  the  other 
reasons  already  suggested,  made  their  rights  dei)endent  on  her  death 
before  marriage  or  full  age.  The  same  reasons  apply  to  the  bequest  lo 
Henry  Bona,  and  make  his  rights  dependent  on  the  contingency  of  the 
death  of  the  son,  Thomas  Henry,  under  age  and  without  issue.  For  the 
testator  intended  the  contingent  bequests  to  the  Lefitts  and  Bona  to 
stand  upon  the  same  footing. 

I  have  said  that  the  cross-remainder  in  favor  of  the  son  depended  on 
the  death  of  his  sister  before  marriage  or  full  age,  and  that  in  favor  of  the 
daughter,  on  the  death  of  the  son  under  age  or  without  issue.  This  is,  I 
think,  the  true  reading  of  the  will.  For,  notwithstanding,  in  the  latter 
]iart  the  testator  speaks  of  both  dying  "  under  age  or  without  issue,"  yet, 
I  apprehend  these  words  relate  to  the  death  of  either  before  the  period 
of  division  ;  and  if  so,  my  construction  is  the  only  one  which  can  be 
given.  For  the  division  is  to  take  place  at  the  marriage  of  the  daughter, 
or  on  either  attaining  to  full  age.  That  the  words  used  in  the  latter  part 
are  intended  to  qualify  and  regulate  the  previous  bequests  at  the  time 
fixed  for  division,  is  obvious  enough  'from  the  connection  in  wliich  they 
are  used.  The  testator  says  that  they  are  additional  to  what  had  gone 
before,  not  that  they  are  in  place  of  the  previous  words.  Read  them  as 
additional,  and  state  the  previous  part  of  the  will,  with  these  additional 
words,  thus — "The  whole  estate  to  be  kept  together  for  the  benefit  of  my 
son  and  daughter,  until  either  of  them  come  of  age,  or  the  marriage  of 
my  daughter,  then  that  it  be  divided  between  them  ;  but  if  both  die  with- 
out issue,  then  that  the  estate  be  given  to  George  and  Eliza  Edwards, 
except  the  negroes  received  in  marriage  with  the  mother  of  my  daughter 
and  son."  When  so  stated,  it  is  only  necessary  to  read  it,  that  it  may  be 
understood.  The  obvious  propriety  of  this  construction  is  thus  made 
manifest,  from  placing  the  words  to  be  construed  in  the  juxtaposition 
which  I  have  done. 

If  this  view  of  the  cross-remainders  is  correct,  it  defeats  at  once  the 
devise  over  to  George  and  Eliza  Edwards.  For  it  is  then  dependent  on 
a  contingency  which  has  never  happened — the  death  of  the  sun  under  age, 
and  ivithoLit  issue.  But  in  relation  to  the  executory  devise  in  their  favor, 
it  is  subject  to  some  other  views,  which  put  an  end  to  all  possil)le  claims 
on  their  part  in  this  behalf.  The  *will  provides — "In  case  of  the  r*i  05 
death  of  my  daughter  Mary  and  my  son  Thomas,  prior  to  their  •- 
being  of  age,  or  having  issue,  that  the  whole  of  my  estate  be  given  to 
George  and  Eliza  Edwards."  Upon  these  words  I  remark  that  the 
words  "be  given,^^  naturally  imply  that  some  person  was  to  have  the 
legal  power  to  fulfil  their  meaning,  by  delivering  over  the  estate  to 
George  and  Eliza  Edwards.  If  their  estate  was  to  be  future  and  expect- 
ant, depending  on  a  general  failure  of  issue,  it  would  have  been  too  remote, 
and  never  could  have  had  effect;  if  it  depended  on  a  failure  of  issue  at 
the  death  of  the  first  taker,  then  no  one  would  have  had  the  power  of 
delivery  contemplated  by  the  will.  For  the  executors'  duty  was  dis- 
charged, and  their  power  ended  when  they  put  the  property  into  tbd 


154  SOUTH    CAROLINA   EQUITY    REPORTS.  [*195 

possession  of  Thomas  Henry  Barksdale.  But  if  the  estate  of  George 
and  Eliza  Edwards  depended  upon  the  death  of  the  daughter  before 
marriage  or  maturity,  and  of  the  son  under  age  without  issue,  then,  as 
the  estate  would  still  be  in  the  care  of  the  executors,  these  words  "be 
given,"  to  George  and  Eliza  Edwards,  could  be  given  effect  to  by  a 
delivery.  Straws,  we  are  told  sometimes  show  us  the  course  which  the 
wind  blows,  so  here,  these  words,  unimportant  as  they  appear  to  be, 
plainly  point  to  an  act  to  be  done  by  his  executors,  in  fulfilment  of  his 
intentions  in  favor  of  the  devisees  in  remainder,  and  that  their  rights 
were  to  attach,  or  be  defeated  at  the  time  fixed  by  the  will  for  the  division 
of  the  testator's  estate. 

In  the  construction  of  this  part  of  the  will,  I  have  taken  it  as  true  that 
"or"  must  be  construed  '-'and."  I  now  proceed  to  assign  the  reasons 
why  it  is  so.  If  I  have  been  right  in  the  construction  that  this  provision 
points  to  the  period  of  a  division  for  its  application,  then  there  can  be  no 
doubt  whatever  that  the  word  "or"  was  used  by  the  testator  in  the  sense 
and  meaning  of  "and."  For  any  other  meaning  would  give  effect  to  a 
dying  without  issue  beyond  that  time,  and  might  carry  over  the  estate  at 
the  death  of  the  devisee,  no  matter  when  it  might  take  place. 

But  the  case  of  Scanlan  v.  Porter,  1  Bail.  427,  it  seems  to  me,  decides 
the  very  point.  The  words  there,  were — "  Should  any  of  my  children 
die  hefore  they  are  of  age,  or  have  laivful  issue. ^'  Tire  words  here  are 
— "In  case  of  the  deaths  of  my  daughter  Mary  and  my  son  Thomas, 
prior  to  being  of  age  or  having  issue."  The  provisions  are  almost  in 
the  same  words  ;  in  substance  they  are  indentical  ;  and  I  am  unable  to 
*iofiT  ^®®  ^"y  J"^^  ground  upon  which  a  distinction*  may  be  drawn  be- 
-l  tween  the  two  cases.  The  reasons  given  for  the  judgment  of  the 
Court  in  Scanlan  v.  Porter,  might  be  used  and  applied  with  equal  force 
and  propriety  to  this  case.  In  construing  such  words  in  a  will,  the 
ol)vious  and  clear  intention  of  the  testator  would,  I  freely  admit,  over- 
reach and  defeat  any  artificial  rule  of  construction.  But  when  that  is  not 
the  case,  it  is  wiser  and  safer  to  adhere  to  a  rule  of  construction  than  to 
resort  to  a  conjectural  exposition  of  the  meaning. 

If  the  devise  to  the  son  or  daughter  had  been  a  fee  conditional,  I  do 
not  perceive  that  that  would  have  altered  the  construction  ;  for,  in  such 
a  case,  the  testator  would  be  regarded  as  intending  to  qualify  the  pre- 
vious fee  conditional  by  creating  an  executory  devise  over,  to  take  effect 
on  the  contingency  of  the  death  of  the  tenants  in  fee  conditional  underage 
without  issue ;  but  if  they  live  to  that  event,  that  then  they  should  have 
the  conditional  fee  with  all  its  common  law  incidents.  Perhaps  the  more 
correct  remark  upon  such  a  disposition  would  be,  that  until  twenty-one, 
or  the  death  of  the  devisees  before  that  age,  leaving  issue,  the  estate  of 
both  son  and  daughter  would  be  a  mere  executory  devise,  which  would, 
at  twenty-one,  or  before  twenty-one,  if  the  devisees  should  die  before  that 
age,  leaving  issue,  become  a  vested  common  law  estate  in  fee  conditional. 
These  views  dispose  of  the  executory  devise  over  to  George  and  Eliza 
Edwards,  and  show  that  it  cannot  take  effect,  for  the  best  of  all  possible 
reasons,  that  the  contingency  has  never  happened,  Thomas  Henry  Barks- 
dale  having  lived  beyond  twenty-one. 

2.  Ti)is  makes  it  necessary  to  inquire  whether  Thomas  Henry  Barks- 
dale  took  the  real  estate  in  fee  conditional,  or  absolutely.     The  part  of 


*196]         CHARLESTON,  FEBRUARY,  1835.  155 

the  will  upon  which  this  depends,  is  in  the  followinj^  words :   "  Respect- 
ing the  lands  and  negroes  now  in  my  possession,  I  desire  thiit  the  wiiole 
may  be  kept  together  and  improved  to  the  utmost  of  tlie  abilities  of  my 
executors,  for  the  mutual  benefit  of  my  daughter,  Mary  White  i3arksdale, 
and  my  son,  Thomas  Henry  Barksdale,  (requesting  that  they  may  have 
the  best  education  that  possibly  can  be  had  in  South  Carolina,)  then  on 
either  arriving  of  age,  or  on  the  marriage  of  my  daughter,  prior  to  such 
period,  I  direct  that  the  said  estate,  with  all  its  accumulation,  may  be 
equally  shared  and  divided  between  them,  which  they  and  their  issue, 
legally  begotten,  are  to  enjoy  for  ever."     Notwithstanding  I  have  said 
that  this  question  depends  upon  the  construction  of  the  part  *of  r:}:in'T 
the  will  quoted,  yet  I  do  not  mean  to  say  that  it  is  alone  to  be  ^ 
looked  to  in  giving  construction  to  it ;  indeed,  it  is  manifest  that  otlier 
parts  of  the  will  must  have  a  great  effect  upon  this.     As  is  said  in  Be- 
don  V.  Bedon,  2  Bail.  24S,  the  device  under  consideration  could  not  be 
considered  a  fee  conditional  ;  "  for  that  estate  supposes  a  possibility  of 
reverter."     In  the  case  before  us,  the  testator  has  shown  that  he  never 
intended  the  estate  to  return,  for  the  want  of  persons  to  take  per  formam 
doni;  for  he  has,  at  least  in  one  event,  death  before  marriage  or  maturity 
without  issue,  provided  how  the  estate  should  go  by  his  will,  and  not  by 
operation  of  law.  Whitworth  v.  Stockey,  1   Richd.   E.  Repts.     If  the 
supposed  estate  of  fee  conditional,  is,  however,  regarded  as  vesting  and 
commencing  on  marriage  or  attaining  to  maturity,  then  it  may  be  fairly 
argued  that  the  testator  did  not  intend  to  create  such  an  estate,  from  the 
fact  that  the  persons  who  would,  on  the  extinction  of  his  lineal  descend- 
ants, be  his  heirs  and  next  of  kin,  George  and  Eliza  Edwards,  and  be 
entitled  to  the  reverter,  where  by  the  will  only  to  take  upon  the  death  of 
the  daughter  and  son  before  marriage  or  full  age,  without  issue.     Under 
the  will,  and    according   to  our   unanimous  construction,   the  son  and 
daughter  have  cross  remainders  in  the  portion  of  the  estate  to  which  each 
would  have  been  entitled.   This,  it  seems  to  me,  is  at  war  with  the  notion 
of  each  having  a  conditional  fee,  for  it  is  admitted  on  all  hands,  that  there 
can  be  no  such  thing  as  a  remainder  after  an  estate  in  fee  conditional ; 
but  if  this  obligation  could  be  avoided  by  rejecting  the  remainder  and 
relying  on  the  fee  conditional  alone,  then  the  son  and  daughter,  each,  had 
a  conditional  fee  in  one  half  the  real  estate.     Upon  the  death  of  the 
daughter,  her  half  reverted,  and  as  her  brother  was  the  only  heir-at-law 
then  surviving  of  the  testator,  he  would  come  in  under  the  reverter,  and 
take  her  half  of  the  estate  absolutely.    Such  a  result  shows,  as  I  conceive, 
the  folly  of  attempting  to  make  a  conditional  fee  out  of  words  which  the 
testator  never  intended  should  have  any  such  effect ;  but  I  liold  there  can 
be  no  such  thing  as  a  fee  conditional  where  there  is  a  good  executory 
devise  over.      When  the  limitation  is  xoithin  a  life  or  lives  in  being  and 
twenty  one  years  after,  it  cuts  down  and  destroys  the  effect  of  even  a 
previous  devise  to  one  and  the  heirs  of  his  body,  by  shoxcing  that  the 
testator  did  not  look  to  an  indefinite  succession,  and  that  he  did  not 
intend  his  devisee  to  have  all  the  incidents  of  the  common  law  estate  of 
fee  conditional,  such  as  the  p>ower  to  alien  or  encumber  the  estate;  for, 
in  *such  a  devise,  it  is  clear  that  his  alienation,  even  after  the  birth  r*jgg 
of  issue,  would  not  bar  the  remainder  man,  if  at  the  deatli  of  the 


156  SOUTH    CAROLINA    EQUITY    REPORTS.  [*198 

devisee  he  had  no  issue  then  living  If  the  devise  be  to  A.  and  the  heirs 
of  his  body,  and  there  are  no  words  to  restrain  their  indefinite  irai)ort, 
then  an  executory  devise  over,  after  a  fiiihire  of  such  heirs  of  the  body, 
vvonkl  be  void  for  remoteness.  In  the  first  case  which  I  have  put,  if  it  is 
not  a  conditional  fee  in  the  first  taker  during  his  lifetime,  it  cannot  be  so 
in  his  issue,  for  they  must  take  through  him  and  by  descent.  The  words 
"  heirs  of  the  body,"  in  such  a  case,  must  be  regarded  as  merely  marking 
the  testator's  intention,  that  if  the  de'^isee  died  without  issue  living  at  his 
death,  that  the  estate  should  go  over,  otherwise  it  should  not,  and  in  this 
point  of  vievv  the  estate  might  be  regarded  as  a  fee  simple  defeasible.  I 
am  aivare  that  this  puts  the  doctrine  in  a  point  of  viexo  not  altogether 
usual ;  it  is,  however,  the  only  means  of  reconciling  two  rules  oflaiv: 
1st.  That  a  limitation  over,  after  a  fee  conditional,  is  void;  2d.  That 
a  limitation  over  ivhich  is  to  take  effect  within  a  life  or  lives  in  being 
is  good. 

The  words  of  the  devise,  however,  which  are  supposed  to  make  it  a  fee 
conditional,  cannot,  in  my  judgment,  have  that  effect.  The  words  "their 
issue  legally  begotten,^'  are  not  necessary  words  upon  which  such  an 
estate  would  arise  at  common  laic.  According  to  it,  as  it  stood  before 
the  statute  de  donis,  the  words  "  heirs  of  the  body"  seem  to  be  the  only 
words  on  which  a  conditional  fee  was  allowed.  Indeed,  in  the  earlier 
days  of  judicial  exposition  of  the  common  law,  the  word  "issue"  was  held 
to  be  a  word  of  purchase.  Under  the  statute  de  donis,  the  word  "  issue" 
has,  I  admit,  been  held  to  be  sufficient  to  imply  an  estate  tail,  and  for  a 
most  obvious  and  just  reason.  Such  an  implication  is  in  exact  accord- 
ance with  the  intention  of  that  statute,  as  expounded  by  the  English 
Judges,  when  they  divided  the  estate  under  it — 1st,  into  a  life  estate  in 
the  first  taker  ;  2d,  the  estate  to  the  issue  per  formani  doni,  and  3d,  the 
reversion.  But  this  cannot  aid  the  plaintiffs'  (George,  and  the  heirs  of 
Eliza  Edwards)  argument  here,  for  their  estate  must  be  judged  of  by  the 
law,  without  the  statue  de  donis.  To  constitute  a  fee  conditional,  the 
words  must  import  inheritance  and  procreation  ;  for  the  descendants  of 
the  tenant  in  fee  conditional,  take  as  heirs  and  heirs  of  the  body.  The 
term  "  issue"  may  include  these  as  persons,  but  not  as  inheritors.  To  give 
*1991  them  that  effect,  we  must  imply,  that  the  testator  intended  that  *they 
-'  should  come  in  by  descent.  I  have  denied,  in  Bedon  v.  Bedon, 
2  Bail.  231,  and  Adams  v.  Chaplin,  1  Hill's  Ch.  265,  that  a  fee  condi- 
tional can  arise  by  implication,  and  I  am  perfectly  satisfied  of  the  correct- 
ness of  the  position,  and  prepared  to  carry  it  out  and  give  it  effect  in  all 
cases. 

But  I  am  persuaded,  that  in  another  point  of  view,  the  words  before 
us  cannot  have  the  effect  contended  for  by  the  plaintiffs,  George,  and  the 
heirs  of  Eliza  Edwards.  They  are  not  parts  of  the  gift — it  was  com- 
plete without  them.  The  words  previously  used,  directing  a  division  of 
the  estate  between  the  son  and  daughter,  were  enough  (I  should  tliink) 
at  common  law  to  give  them  the  fee  ;  but,  when  they  are  construed  under 
our  act,  there  can  be  no  question  that  the  daughter's  and  son's  respective 
estates,  when  the  daughter  married  or  attained  to  twenty-one,  and  the 
son  was  of  full  age,  were  fees  simple  absolute. — Bedon  v.  Bedon,  2  Bail. 
2ol;   Adams  v.  Chaplin,   1  Hill's  Ch.   Rep.   265.     As  Thomas  Henry 


*199]         CHARLESTON,  FEBRUARY,  1835.  157 

Barksdale  attained  that  age,  and  was  entitled  on  the  previous  words  to 
that  estate,  were  the  subsequent  words  intended  to  change  the  legal 
character  of  it  ?  I  think  not.  They  are  more  descriptive  of  the  enjoy- 
ment of  the  estate  which  the  testator  thought  would  result  to  his  son  and 
daughter  and  their  issue  forever,  from  the  division  of  it  between  them 
nnder  the  provisions  of  this  will  :  as  is  said  by  my  brother  Johnson,  in 
Manigault  v.  Deas,  they  are  used  "  as  marking  the  quantity  of  the  estate" 
which  the  devisees  took.  They  were  the  mere  expression  of  hope  on  the 
part  of  an  anxious  parent,  that  the  estate  would  descend  from  generation 
to  generation  in  his  blood  forever.  But  they  were  not  used  as  restrictive 
of  the  previous  estate ;  if  any  idea  of  their  legal  effect  entered  into  the 
mind  of  the  testator,  it  was  that  they  would  show  that  the  estate  was  in 
his  children  forever. 

These  views  show  satisfactorily,  at  least  to  my  mind,  that  the  plaintiffs 
(George  Edwards  and  the  heirs  of  his  sister,  Eliza  Edwards)  cannot  take 
under  the  executory  devise  over  ;  nor  as  the  heirs  of  the  testator.  So 
much  of  their  bill  as  sets  up  these  claims,  ought  to  be  dismissed ;  it 
ought  however  to  be  retained,  so  far  as  they  claim  as  next  of  kin  of  the 
deceased,  Thos  Henry  Barksdale.  So,  too,  so  much  of  the  bill  of  Henry 
Bona  as  claims,  under  the  will  of  George  Barksdale,  the  negroes  which 
belonged  to  the  mother  of  Thomas  Henry  Barksdale,  ought  to  be  dis- 
missed; but  so  much  as  claims  as  next  of  kin  of  Thomas  Henry  Barks- 
dale, *ought  to  be  retained.  The  question  of  who  are  his  next  of  r>i:9AQ 
kin,  has  not  been  tried  ;  the  cases  must  go  back  for  the  purpose  of  ^  "^ 
trying  it,  and  of  making  partition  between  the  widow  and  next  of  kin. 

It  is  ordered  and  decreed,  that  the  Circuit  decree  be  reversed,  and  the 
causes  remanded  to  the  Circuit  Court  for  the  purpose  of  ascertaining  the 
next  of  kin  of  Thos.  Henry  Barksdale,  (deceased,)  and  making  partition 
of  his  estate  between  them  and  the  defendant,  Mrs.  M.  S.  Barksdale,  his 
widow.    The  costs  of  both  cases  to  be  paid  out  of  the  estate. 

Johnson,  J.,  concurred. 


John  Boykin  and  Wife,  v.  Lewis  Ciples  and  Wife,  and  F.  A. 

Delesseline. 

A  feme  covert  may  sustain  a  suit  for  her  separate  estate,  her  husband  being  joined 
in  the  bill;  in  such  case  she  will  not  be  estopped  by  his  deed,  made  in  his  indi- 
vidual capacity.  [*203] 

Where  no  trustee  has  been  appointed,  the  husband  will  be  regarded  as  trustee  of 
his  wife's  separate  estate;  but  on  bill  filed  by  husband  and  wife  for  such  estate, 
the  Court  will  appoint  another  trustee.  [*203] 

Charleston. — May,  1834. 

This  case  arises  under  the  will  of  John  Adarason,  of  Camden,  dated 
21st  January,  1814.  The  testator  left  two  daughters— Sarah,  who  inter- 
married with  the  defendant,  Lewis  Ciples,  and  Amelia,  now  deceased, 
who  intermarried  with  the  defendant,  F.  A.  Delesseline ;  a  grand- 
daughter, the  plaintiff,  Charlotte  A.  Boykin,  formerly  Adamson,  who 


158  ^  SOUTH    CAROLINA    EQUITY    REPORTS.  [*200 

intermarried  with  the  phiiutiif,  John  Boykin;  and  three  grand-sons, 
John,  Alexander  and  William  Adamson.  By  two  clauses  in  said  will  he 
bequeathed,  viz  :  "  To  each  of  my  daughters,  Sarah  Ciples,  wife  of  Lewis 
Ciples,  and  Amelia  Adamson,  and  to  luy  grand-daughter,  Charlotte 
Adamson  Boykin,  wife  of  John  Boykin,  during  their  natural  lives,  alone 
to  their  sole  and  separate  use  and  benefit,  without  being  in  any  manner 
subject  to  the  debts,  contracts  or  forfeitures  of  their  husbands,  and  to  the 
heirs  of  their  respective  bodies,  who  may  be  living  at  the  time  of  their 
respective  deaths,  I  give  and  bequeath  fifty  shares  in  the  Union  Bank, 
ami  fifty  shares  in  the  Planters'  and  Mechanics'  Bank  of  this  State, 
making  in  the  whole  three  hundred  shares.  In  case  either  of  my 
daughters  or  grand-daughter  should  die  without  leaving  such  heirs  of  her 
body,  her  sliare  shall  go  to  the  other  or  others  of  them,  subject  to  the 
*9nn  same  *terms  and  limitations  as  her  or  their  other  bank  shares.  In 
"  -I  case  they  should  all  die  without  leaving  such  heirs,  the  said  bank 
share  shall  go  to  my  grand-sons  above  named,  subject  to  the  same  terms 
as  the  bank  shares  bequeathed  to  thoni.  To  my  daughter  Amelia, 
during  her  natural  life,  alone  and  to  her  sole  and  separate  use,  without 
being  in  any  manner  suliject  to  the  debts,  contracts  or  forfeitures  of  her 
husband,  and  after  her  death  to  the  heirs  of  her  body  who  may  be  living 
at  the  time  of  her  death,  I  give  and  bequeath  the  following  negro  slaves 
with  their  increase  from  this  day,  that  is  to  say — Molly,  Aty,  Fanny,  Pat 
and  her  six  children,  John,  his  wife  and  her  two  children,  old  Xance  and 
her  six  children,  Bob,  Dublin,  London,  and  his  wife  and  her  child,  making 
in  all  twenty-six  slaves,  subject  to  the  same  limitations  over  on  her  death 
without  leaving  such  heirs,  as  are  expressed  respecting  the  bank  stock 
hereinbefore  bequeathed  to  her." 

After  the  date  of  the  will,  Amelia  intermarried  with  Francis  A,  Deles- 
seline.  The  testator  died  in  May,  1816,  and  in  January,  1817,  the  three 
husbands.  Ciples,  Boykin  and  Delesseline,  with  the  consent  and  knowledge 
of  their  wives,  executed  mutual  releases  in  the  following  manner  : — 

South  Carolina. 

AVhereas  John  Adamson,  by  his  last  will  and  testament,  made  the 
following  bequests  to  Sarah  Ciples,  wife  of  Lewis  Ciples,  Amelia  Adam- 
son, who  has  since  married  Francis  A.  Delesseline,  and  Charlotte  A. 
Boykin,  wife  of  John  Boykin,  with  such  limitations  over  as  in  the  said 
will  are  expressed  :  that  is  to  say,  to  the  said  Sarah  Ciples,  thirty-two 
slaves,  in  the  said  will  named  to  Amelia  Delesseline,  twenty-six  slaves, 
and  to  Charlotte  A.  Boykin,  twenty-six,  in  the  said  will  named,  and  all 
the  increase  of  the  said  slaves  from  the  time  of  making  the  said  will. 
And  whereas  it  has  been  agreed  by  and  between  the  said  Lewis  Ciples, 
F.  A.  Delesseline  and  John  Boykin,  to  relinquish  and  secure  to  each  other 
all  the  contingent  interest  which  may  enure  to  their  respective  wives  and 
the  heirs  of  their  respective  bodies,  by  such  wives  on  the  death  of  any  of 
them,  the  said  Sarah,  Amelia,  or  Charlotte,  without  heirsof  their  respective 
bodies.  Now  know  all  men  by  these  presents,  that  in  consideration  of  the 
premises,  and  in  consideration  that  the  said  Lewis  Ciples  has  made  to  me 
*onoi  ^  deed  of  the  same  import  of  these  presents,  and  a  further  *consid- 

"-•  eration  of  one  dollar  to  me,  the  said  John  Boykin,  in  hand  paid  by 
the  said  Lewis  Ciples,  the  receipt  whereof  is  hereby  acknowledged,  have 


*202]         CHARLESTON,  FEBRUARY,  1835.  159 

granted,  bargained,  sold  and  delivered,  and  by  these  presents  do  grant, 
bargain,  sell  and  deliver  to  the  said  Lewis  Ciples,  all  the  said  thiriy-two 
negroes  and  their  increase,  so  bequeathed  to  the  said  Sarah  Ciples,  to 
have  and  to  hold  the  said  negro  slaves  and  their  increase  to  the  said 
Lewis  Ciples,  his  executors,  administrators  and  assigns,  for  ever.  And  I 
do  hereby  bind  myself,  my  heirs,  executors  and  administrators,  to  warrant 
and  for  ever  to  defend  the  said  negro  slaves  and  their  increase,  to  the 
said  Lewis  Ciples,  his  executors,  administrators  and  assigns,  against 
myself,  my  wife,  and  the  heirs  of  the  body  of  my  wife,  by  me  begotten,  or 
any  other  person  by,  through  or  under  me  or  them,  claiming  or  to  claim 
the  same  or  any  part  of  the  said  slaves  or  their  increase,  but  not  against 
the  claims  of  any  other  person,  or  of  any  heirs  of  the  body  of  the  said 
Charlotte  by  any  other  husband  begotten. 

(Signed)  Jno.  BoYiaN. 

Mrs.  Delesseline  died  in  July,  1832,  without  having  had  issue;  and 
Mr.  and  Mrs.  Boykin,  in  May,  1833,  filed  this  bill  against  Ciples  and 
wife,  and  Delesseline,  to  recover  under  the  terms  of  the  said  will,  their 
alleged  proportion  of  the  negroes  bequeathed  to  Mrs.  Delesseline. 

The  defendants  contended  that  the  plaintiffs  were  not  entitled  to 
recover — that  Mrs.  Boykin  could  not  maintain  the  suit,  and  that  Mr. 
Boykin'was  estopped  by  his  deed  of  January,  ISIT. 

Johnston,  Chancellor.  The  objection  made  to  the  manner  in  which 
Mrs.  Boykin  sues,  if  valid,  comes  too  late.  The  slaves  are  expressly 
exempted  from  the  contracts  of  the  husbands.  Of  course  the  husbands' 
deeds  are  invalid,  as  respects  the  wives.  I  shall  not,  however,  interfere 
with  the  legal  liabilities  of  these  three  husbands  and  executors,  to  make 
good  the  warranties  of  the  three  interchangeable  deeds,  whereby  they 
assumed  rights  they  did  not  possess,  nor  had  any  reason  to  suppose  they 
possessed,  and  that  for  the  purpose  of  frustrating  the  provisions  of  a  will, 
of  which  two  of  them  were  executors  appointed  by  the  testator,  and 
which  the  other  was  bound  by  his  marriage  to  execute.  Let  each  take 
his  remedy  against  the  other  at  law,  if  he  chooses.  But  the  deeds  are 
*declared  inoperative,  as  regards  the  wives.  It  is  further  decreed  t^qqq 
that  Mrs.  Boykin  is  entitled  to  a  ])artition  with  Mrs.  Ciples,  of  the  ^ 
slaves  left  at  Mrs.  Delesseline's  death — the  share  of  each  to  be  subject  to 
the  limitations  of  Mrs  Adamson's  will.  Let  a  writ  issue  for  the  parti- 
tion. If  either  wishes  security  for  the  forthcoming  of  the  property  to 
answer  the  limitations  over,  an  application,  when  made,  will  be  heard. 
Let  Lewis  Ciples,  Mr.  Boykin  and  Mr.  Delesseline,  each,  pay  his  own  costs. 

From  this  decree  the  defendants  appealed  on  the  grounds  :  — 

1.  That  Mrs.  Boykin  cannot,  in  her  own  name,  maintain  a  suit  for 
the  recovery  of  these  negroes. 

2.  That  Mr.  Boykin  is  estopped  by  this  deed. 

8.  That  when  the  separate  estate  of  the  wife  has  been  conveyed  or 
released  by  the  husband,  the  husband  and  wife  cannot  maintain  a  suit 
for  its  recovery. 

King,  for  the  appellants, 

Petigru,  contra. 

Harper,  J,     The  only  question  necessary  to  be  considered  is,  whether 


160  SOUTH    CAROLINA    EQUITY    REPORTS.  [*203 

a  married  woman  may  sustain  a  suit  for  her  separate  property,  her 
husband  being  joined  in  the  bill.  If  she  may,  she  certainly  cannot  be 
estopped  by  her  husband's  deed,  made  in  his  individual  capacity. 

When  property  is  settled  to  the  separate  use  of  a  married  woman,  and 
no  trustee  is  appointed,  it  is  the  known  rule  of  the  Court  that  the  hus- 
band shall  be  made  a  trustee.  Being  such  trustee,  it  should  seem  that 
he  was  a  necessary  party  to  a  suit  for  the  trust  property,  and  being  liable 
for  costs,  that  any  other  prochem  amy  was  unnecessary.  It  is  true  that 
it  was  said  by  Lord  Hardwicke,  Fawlet  v.  Delaval,  2  Ves.  sen.  663,  if  a 
bill  be  brought  by  husband  and  wife  for  the  wife's  property,  it  is  the 
husband's  bill  ;  but  in  that  case,  for  aught  that  appears,  the  suit  was  for 
the  benefit  of  the  husband. 

He  explains  in  GrifiBth  w.  Hood,  lb.  453,  that  "where  there  is  any 
thing  for  the  separate  use  of  the  wife,  a  bill  ought  to  be  brought  by  her 
pochein  amy  for  her,  otherwise  it  is  her  husband's  bill.  However,  there 
have  been  cases  of  such  a  bill  by  the  husband  and  wife,  and  the  Court 
has  taken  care  of  the  wife,  and  ordered  payment  to  some  person  for 
her." 

*-?nil       *This  is,  I  suppose,  what  we  are  bound  to  do,  if  the  bill  be 
■^     -^  sustained.     A  husbaud,  from  necessity,  is  construed  the  trustee  of 
the  wife,  but  he  is  not  the  proper  trustee.     In   general,  the  office  of  a 
trustee  is  to  protect  the  property  against  the  husband. 

The  Chancellor's  decree  is  therefore  affirmed,  and  it  is  ordered  that  it 
be  referred  to  the  Commissioner  to  report  to  the  Court  of  Chancery  at 
its  next  sitting,  a  proper  person  to  be  appointed  the  trustee  of  the  plain- 
tiff, Mrs.  Boykin,  and  that  upon  such  trustees  being  appointed,  the 
property  allotted  to  Mrs.  Boykin  under  the  writ  of  partition,  be  delivered 
to  him  to  be  held  to  the  uses  of  John  Adamson's  will. 

Johnson,  J.,  and  O'Neall,  J.,  concurred. 


James  Thompson,  and  Jane,  his  wife,  and  Michael  Murray,  an  infant, 
by  his  next  friend,  the  said  James  Thompson,  v.  Stevens  Perry, 
James  Murray,  and  Elizabeth,  his  wife,  Robert  W.  Seymour,  and 
Richard  Connoly. 

Contribution  among  volunteers  under  separate  conveyances,  refused.   [210] 

What  acts  will  estop  a  party  from  setting  up  a  resulting  trust.  [*210] 

Under   what   circumstances,  a  feme  covert  may  dispose   of  property  by  way  of 

appointment.  [*21]] 
Wife  not  dowable  of  an  estate  held  by  the  husband  as  trustee.  [*213] 
Contribution  to  remove  a  general  lien  ou  the  whole  property  will  not  be  allowed 

among  volunteers,  unless  there  was  an  inevitable  necessity  that  part  of  the  property 

should  pay  it:  the  necessity  caunot  exact  where  the  donor  is  still  solvent,  for  it 

seems  then  the  creditor  might  in  equity,  be  forced  to  exhaust  the  donor's  estate 

before  proceeding  against  the  property  conveyed.  ["213] 
Where  real  estate  was  conveyed  in  trust  for  a  feme  covert,  and  to  such  person  as 

she,  by  will  or  deed  should  appoint,  her  appointment  by  will  is  valid  without  the 

concurrence  of  her  husband.  [*214] 

The  bill  which  was  filed  the  27th  March,   1832,  states,  that  on  the  1st 
March,  1823,  John  M,  Murray,  the  former  husband  of  the  plaintiff,  Jane 


*204]       cnARLESTON,  MARCH,  1835.        161 

• 

Thompson,  and  father  of  the  plaintift",  Michael  Murray,  purchased  a  lot 
in  Charleston  at  the  corner  of  King  Street  and  South  iJay,  for  $2,500. 
That  on  the  loth  of  the  same  month,  the  said  John  M  Murray  by 
indenture  of  release  for  the  nominal  consideration  of  $1000,  conveyed  the 
lot  to  defendant,  Stevens  Perry,  in  trust  for  Catharine  Coiinoly,  the  wife 
of  Richard  Connoly ;  and  in  the  release,  a  power  devising  the  lot  not- 
withstanding coverture,  was  attempted  to  be  given.  That  Catharine 
Connoly,  who  was  the  mother  of  the  jdaintifF,  Jane,  and  of  the  defendant, 
Elizabeth  Murray,  afterwards  in  reference  to  the  supposed  power,  execu- 
ted an  instrument  in  the  nature  of  a  will,  by  which  she  devised  the  said 
lot  to  her  daughter  Elizabeth,  (who  has  since  intermarried  with  James 
Murray,)  on  condition  that  in  seven  years  she  pay  to  the  plaintiif, 
Michael,  one  thousand  dollars,  and  that  defendant,  Elizabeth,  has,  since 
the  death  of  her  mother,  remained  in  possession  thereof.  That  Richard 
Connoly,  the  husband  of  Catharine,  *having  never,  either  before  r^j^.^r^c 
or  after  his  marriage,  given  any  ]iower  or  authority  to  his  said  L  -• 
wife  to  dispose  of  property  by  will,  or  to  acquire  property  to  her  sepa- 
rate use,  her  will  is  absolutely  void,  and  the  lot  is  subject  to  partition  as 
the  estate  of  the  said  Catharine  :  or  the  trusts  of  the  release  having 
terminated  by  the  death  of  the  said  Catharine,  the  uses  of  the  conveyance 
result  to  the  grantor  and  his  heirs,  and  the  lot  is  now  part  of  his  estate  ; 
and  by  his  will,  he  devised  his  whole  estate  to  the  plaintiff,  Jane,  for  life, 
with  remainder  to  his  son  Michael.  The  bill  avers  that  the  plaintiff, 
Jane,  was  at  the  time  the  release  of  her  husband  was  executed  under  age, 
and  being  ignorant  of  the  ol)ject  of  the  parties,  and  supposing  that  some 
equitable  family  arrangement  was  intended,  renounced  her  right  of  dower 
to  the  lot,  which  renunciation,  under  the  circumstances,  it  is  insisted  is 
not  binding  :  that  the  said  lot  has  been  conveyed  by  defendant,  Elizabeth, 
to  Robert  W.  Seymour  and  Richard  Connoly  as  trustees,  by  way  of  settle- 
ment on  the  said  Elizabeth  and  her  husband.  The  bill  further  states, 
that  on  the  25th  September,  1826,  Richard  Connoly  executed  two  deeds 
of  gifts,  one  to  John  M.  Murray,  the  plaintiff's  then  husband,  in  trust  for 
his  daughter  Jane,  of  two  negro  slaves  ;  the  other  to  Elizabeth  Connoly, 
of  three  negroes  :  that  one  of  the  negroes  so  given  to  the  plaintiif,  Jane, 
has  been  levied  on  and  sold  to  satisfy  an  execution  against  Connoly,  and 
being  insufficient,  the  other  negro  is  threatened  to  be  sold  for  the  same 
purpose.  The  plaintiffs  insist  that  Murray  and  wife  stand  in  the  same 
relation  to  the  debtor  as  they  do,  and  are  bound  to  contribute  equally 
witb  them  to  the  payment  of  this  execution. 

The  prayer  is,  that  Murray  and  wife  may  be  decreed  to  contribute  to 
the  payment  of  Connoly 's  debts,  for  wdiich  the  negroes  so  given  are 
liable  :  that  partition  of  the  lot  be  ordered,  if,  in  the  opinion  of  the  Court, 
it  is  subject  to  partition  as  the  estate  of  Catharine  Connoly  ;  or,  if  the 
Court  should  be  of  opinion  that  the  lot  is  in  Equity,  the  i)roi)erty  of  the 
estate  of  John  M.  Murray,  that  the  defendants  may  be  decreed  to  convey 
it  according  to  the  limitations  of  his  will,  and  that  in  either  case  defend- 
ants account  for  the  rents  and  profits. 

The  answer  of  Stevens  Perry  admits  the  purchase  of  the  lot  by  John 
M.  Murray — the  release  to  himself  as  trustee  for  Mrs.  Connoly,  with 
power  to  devise,  and  the  execution  of  the  will  in  pursuance  thereof     He 


162  SOUTH    CAROLINA    EQUITY    REPORTS.  [*205 

• 
*9fiRl  ^^^^  "°^  know  that  Richard  Connoly  gave  his  *wife  any  authority 
-I  to  dispose  of  property  by  will  or  otherwise,  but  submits  that  such 
authority,  or  his  consent  may  be  implied  from  his  knowledge  of  the 
release,  and  requesting  this  defendant  to  act  as  trustee.  He  admits  the 
execution  of  M.  Murray's  will,  but  requires  proof  of  the  plaintiffs' 
(Jane's)  nonage,  when  she  renounced  her  dower,  and  submits  that  such 
renunciation  is  at  all  events  effectual. 

The  answer  of  James  Murray,  and  Elizabeth  his  wife,  avers  that 
Catharine  Connoly  paid  John  M.  Murray,  $2'?50  for  the  lot  conveyed  to 
her  by  the  release,  she  having  funds  separate  from  her  husband  :  that 
ElizalDeth  held  under  the  will  of  her  mother  until  shortly  before  her 
marriage,  when  she  conveyed  the  lot  and  the  negroes  given  to  her  by 
deed  of  gift  from  her  father  to  Mr.  Seymour,  in  trust  for  the  uses  of  the 
marriage  settlement.  They  insist  that  Mrs.  Connoly  had  full  power  to 
devise  the  lot  by  way  of  appointment — deny  any  right  to  contribution, 
and  rely  on  the  marriage  settlement  as  a  purchase  for  valuable  con- 
sideration without  notice  of  any  equity  or  lien. 

The  answer  of  Richard  Connoly — avers  that  the  purchase  of  the  lot  by 
John  M.  Murray  was  made  with  his  (Connoly's)  funds,  advanced  by  his 
wife  to  Murray  without  his  knowledge,  and  with  a  view,  as  he  believes, 
to  secure  the  property  to  their  family  :  that  his  wife  executed  her  will 
without  any  authority  from  him,  and  without  his  knowledge  or  consent ; 
and  although  he  was  a  party  to  the  mari'iage  settlement  between  James 
Murray  and  his  daughter,  he  did  not  thereby  intend  to  waive  any  of  his 
rights  ;  and  as  the  property  was  purchased  with  his  funds,  he  ])rays  that 
it  may  be  decreed  to  be  conveyed  to  him.  That  his  wife  loaned  $1000  of 
his  funds  to  John  M.  Murray  without  his  knowledge,  and  he  never  knew 
of  it  until  after  his  wife's  death.  He  prays  that  in  any  decree  which  may 
be  made,  as  the  plaintiffs  are  the  lawful  representatives  of  John  M. 
Murray,  they  may  be  decreed  to  account  to  him  for  this  money.  He 
denies  that  at  the  time  the  release  was  executed,  the  plaintiff,  Jane,  was 
under  age ;  on  the  contrary,  he  believes  she  was  then  twenty-one. 

Robert  W.  Seymour — answers  that  he  is  ignorant  of  the  matters 
charged  in  the  Ijill  :  as  trustee  to  the  marriage  settlement  between  James 
Murray  and  his  wife,  he  prays  that  in  any  decree  which  may  be  made, 
the  interests  of  those  concerned  in  the  settlement,  may  be  duly  regarded 
and  protected. 

-j-.^^Yi       *The  cause  came  on  for  trial  before  Chancellor  Johnston,   at 
"    'J   Charleston,  January,  1833. 

The  plaintiffs  gave  in  evidence  the  conveyance  for  the  lot  from  John 
M.  Murray  to  Stevens  Perry,  (expressed  to  be  in  consideration  of  $1000) 
in  trust  for  Catharine  Connoly,  and  "  to  the  use  of  such  person  or  per- 
sons, for  such  estate  or  estates,  and  for  such  interest,  and  in  such  parts 
and  proportions,  and  chargeable  in  such  manner,  either  absolutely  or  con- 
ditionally, as  the  said  Catharine  at  any  time,  by  deed  or  instrument  in 
writing,  or  by  last  will  and  testament  to  be  sealed  and  delivered  by  her  in 
the  presence  of  two  or  more  witnesses,  shall  direct,  limit  and  appoint." 
On  which  is  the  renunciation  of  dower  in  common  form  by  the  plaintiff, 
Jane,  then  Murray's  wife. 

The  will  of  Mrs.  Connoly,  dated  16th  August,  1828,  was  produced, 
by  which,  in  reference  to  the  power  contained  in  the  deed,   she  devises 


'207] 


CHARLESTON,  MARCH,  1835.  163 


the  lot  to  her  daughter  Elizabeth,  on  condition  that  within  seven  years 
she  pay  to  the  plaintiff,  Michtel  Murray,  one  thousand  dollars.  As  also 
the  will  of  John  M.  Murray,  dated  ISth  April,  1829,  in  which  he  directs 
that  his  personal  estate  be  sold  to  pay  his  debts,  and  if  insufficient,  that 
his  real  estate,  to  wit :  "  my  three  story  brick  house  on  South  Bay,  as 
also  my  two  story  wooden  house,  now  occupied  by  me  as  a  dwelling 
house,  &c.,"  be  sold;  "  and  after  the  payment  of  debts,  I  give  to  my 
wife,  Jane,  my  real  and  personal  estate  which  may  remain,  during  her 
natural  life,  and  after  her  decease  to  my  son  Michiel,  &c. " 

Also,  two  bills  of  sale  from  Richard  Connoly,  to  his  daughters,  Jane 
and  Elizabeth,  as  stated  in  the  bill,  dated  23d  Sept.,  182(5,  with  clauses 
of  warranty  "  against  all  persons,"  the  first  purporting  to  be  in  consid- 
eration of  $150,  and  the  last  of  $100. 

Certain  judgments  against  Richard  Connoly  were  given  in  evidence, 
on  account  of  which  it  was  proved,  one  of  the  negroes  in  the  bill  of  sale 
to  Jane  was  sold,  leaving  still  unsatisfied  balances. 

The  defendants  gave  in  evidence,  the  deed  of  marriage  settlement, 
dated  .31st  Dec,  1829,  between  James  Murray  of  the  first  part,  Eliza- 
beth Connoly  of  the  second,  and  Robert  W.  Seymour  and  Richard  Con- 
noly of  the  third  ;  whereby,  in  consideration  of  a  marriage  intended 
between  the  two  first,  the  said  Elizabeth  conveyed  to  the  two  last  the 
said  lot  and  negroes  mentioned  in  the  deed  and  bill  of  sale,  in  trust  for 
the  use  and  benefit  of  the  said  Elizabeth  and  James  during  her  life,  and 
to  such  person  as  she  by  will  should  appoint. 

*It  was  proved  that  John  Murray  came  to   Charleston  a  poor  r.-i<c)Qo 
young  man,  about  1820,  and  worked  as  a  tradesman  at  low  wages  L 
until  May,  1821,  when  he  married  the  plaintiff",   Jane,   and  commenced 
merchandizing. 

William  Carter,  of  the  firm  of  Bee  &  Carter,  sworn.  Was  a  broker 
in  1823.  Was  employed  by  Mrs.  Beach  and  Mrs.  Gilchrist  to  sell  two 
lots,  one  at  the  corner  of  South  Bay  and  King  streets  ;  the  other  adjoin- 
ing it  on  King  street.  Sold  them  Jan.  10,  1823,  separately.  At  the 
sale,  they  were  set  down  to  John  M.  Murray,  each  at  the  sum  of  $2,500. 
Before  the  sale,  John  M.  Murray  and  Richard  Connoly  came  to  witness, 
together,  and  gave  him  to  understand  that  Connoly  was  to  buy  the  corner 
lot,  and  Murray  the  other.  When  titles  came  to  be  made,  witness,  re- 
collecting this,  remarked  to  them,  upon  finding  that  titles  were  to  be 
made  to  Murray  for  both  lots,  that  he  was  surprised  at  it.  They  replied, 
the  matter  was  understood  between  them.  John  M.  Murray  always 
gave  witness  to  understand,  that  the  money  paid  for  the  corner  lot  was 
paid  by  Mrs.  ConnolJ^  Although  the  titles  were  made  to  Murray,  yet 
there  were  two  bonds  and  two  title  deeds,  one  for  each  lot.  The 
bonds  were  for  the  same  amount,  drawn  by  the  same  obligors,  and  paya- 
ble at  the  same  time  ;  but  secured  by  separate  mortgages,  one  for  each 
lot.  Mrs.  Beach  and  Mrs.  Gilchrist  put  both  bonds  into  witness'  hands. 
Murray  paid  part  of  the  money  to  them  before  witness  received  them,  and 
took  loose  receipts  in  general  terms.  After  witness  received  them,  he 
made  partial  payments,  and  took  the  same  kind  of  receipts.  Witness 
therefore  had  a  right  to  enforce  either  mortgage  for  the  balance  left. 
But  conceiving  that  the  lot  he  considered  Connoly's  had  l)een  paid  otf  by 


16-1  SOUTH    CAROLINA    EQUITY    REPORTS.  [*208 

Mrs.  Connoly,  through  Miirra}',  he  put  Murray's  bond  in  suit,  and  en- 
forced the  mortgage  on  his  lot — that  is,  the  lot  on  King  street. 

Mrs.  Murray  sworn — objected  to.  Connoly  and  wife  lived  at  the 
corner  of  King  street  and  South  Bay.  Had  two  children,  Mrs.  Thomp- 
son and  witness.  There  were  leased  houses  on  the  lot  when  sold  l)y  Bee 
&  Carter.  The  houses  belonged  to  different  persons  from  those  who 
owned  the  lots. 

Witness  knows  that  her  mother  paid  $2750  for  the  corner  lot.  Murray 
charged  $250  for  tlie  difference  in  the  value  of  the  lots.  Witness  lived 
in  the  house,  and  knew  of  each  payment  when  made  Her  mother  paid 
to  John  M.  Murray,  who  came  for  the  money  to  carry  it  to  Carter. 
5(,g^(v-,  *Has  heard  Murray  and  her  mother  often  in  conversation  about 
-^  it :  they  always  said  the  payments  were  made  by  her.  He  had 
not  the  means  He  had  not  even  the  means  to  pay  for  his  own  lot 
when  he  bought  it — had  been  keeping  store  and  boarders  but  a  short  time. 

Heard  Murray  often  say  he  had  not  the  means  to  begiu  with,  but  that 
her  mother  gave  him  $1000  for  that  purpose. 

Her  father  and  mother  were  in  possession,  before  the  purchase,  of  the 
corner  house,  and  continued  to  live  together  there  till  1826,  when  he 
went  to  his  plantation,  leaving  her  mother,  &c.,  there.  He  was  back- 
wards and  forwards  after  that  time.  There  was  a  misunderstanding 
between  her  father  and  mother,  which  sprung  up  about  that  time. 

Has  never,  to  this  hour,  heard  any  one  whatever  say  that  her  mother 
did  not  pay  for  the  house. 

Murray,  in  1826,  borrowed  from  her  mother  $1000,  to  aid  him  in 
buying  a  lot  on  South  Bay.  He  promised  to  give  a  note  for  the  loan — 
promised  in  witness'  presence.  The  note  was  to  be  payable  at  two  years. 
The  loan  was  to  be  free  of  interest,  for  two  years,  and  then  to  bear  inte- 
rest at  five  per  cent.  He  bought  the  lot,  which  he  owned  at  his  death  ; 
but  he  never  gave  the  note.  Her  mother  repeatedly  asked  for  it :  his 
reply  always  was,  that  he  would  go  and  write  the  note,  and  bring  it :  but 
he  never  did  so.  Her  father  knew  nothing  of  this  loan.  John  M. 
Murray  died  in  1829,  after  witness'  mother. 

Just  before  her  mother's  death,  she  deposited  a  large  sum  in  specie,  in 
the  United  States  Bank.     Can't  tell  the  amount. 

Cross-examined.  Sometimes  her  mother  delivered  the  money  in  pay- 
ment of  the  corner  lot  to  Murray's  wife,  who  delivered  it  to  her  husband. 
She  took  no  receipts.  The  money  passed  confidentially.  Her  mother 
was  to  have  the  bonds  delivered  to  her  when  the  last  payment  was 
made. 

Presumes  the  money  was  saved  by  her  from  a  store  kept  by  her  and 
her  father,  in  which  they  did  a  pretty  good  business.  No  money  came 
to  her  mother  but  from  the  store.  The  store  was  kept  in  her  father's 
name. 

The  $2750,  the  $1000,  and  the  other  $1000  loaned,  all  came  from  the 
store.  Her  father  knew  of  the  profits  of  the  store,  but  left  it  to  his  wife 
to  take  care  of  them. 

5,,cj,  ^-1       The  testimony  going  to  show  a  resulting  trust,  given  by  Carter,* 
-'  and  Mrs.  Murray,  and  the  testimony  as  to  the  loan  of  the  $1000 
given  by  the  latter,  was  objected  to,  on  the  ground  that  it  was  incompe- 
tent to  prove  the  trust  by  parol ;   and  on  the  further  ground  that  the 


*210]  CHARLESTON,    MARCH,    1835.  165 

resulting  trust  and  loan  could  only  be  set  up  by  cross-bill.     The  evidence 
was  received  subject  to  the  objections,  in  order  to  avoid  a  new  trial. 

Johnston,  Chancellor.  The  first  question  among  those  discussed  is, 
whether  the  plaintiffs,  Thompson  and  wife,  are  entitled  to  contribution 
for  the  slave  sold,  and  to  have  James  Murray  and  wife  decreed  liable  with 
respect  to  the  slave  threatened  with  sale.  It  is  unnecessary  to  go  into  this 
matter  at  all,  since  this  being  a  case  of  separate  conveyances,  unless  there 
is  something  to  make  Richard  Connoly  liable  to  the  plaintiffs,  no  one 
holding  under  him  can  be  made  responsible.  If  the  bills  of  sale,  in  con- 
tradiction to  their  terms,  be  held  mere  gifts  without  warranty,  then 
Richard  Connoly,  and  of  course  other  volunteers  under  him,  holding  by 
separate  conveyances,  are  not  responsible  to  these  plaintiffs.  If  the  bills 
of  sale  set  forth  the  real  terms  of  the  transfer,  then  these  plaintiffs  have 
ample  remedy  if  Richard  Connoly  be  solvent ;  and  there  is  no  allegation 
in  the  bill  of  his  insolvency.  Besides,  it  is  not  alleged  that  the  debts  of 
Connoly  existed,  or  bound  the  slaves  when  conveyed  by  him. 

The  next  point  concerns  the  lot  at  the  corner  of  King  street  and  South 
Bay. 

The  evidence  satisfies  me  that  the  funds  with  which  the  lot  was  pur- 
chased never  belonged  to  John  M.  Murray,  and  that  the  title  was  never 
intended  to  vest  in  him.  He  was,  therefore,  really  a  trustee,  and  merely 
executed  a  trust  when  he  conveyed  to  Perry.  The  conveyance  carried 
the  fee  out  of  him ;  and  his  wife's  dower  was  well  renounced  also,  her 
allegation  of  infancy  not  being  proved. 

As,  in  reality,  John  M.  Murray  was  a  mere  trustee,  even  if  there  had 
been  a  defective  execution  of  the  power  of  appointment  by  Mrs.  Con- 
noly, his  legatees  could  not  complain.  The  property  might  as  well  rest 
where  it  is,  or  in  Perry's  hands,  as  to  be  brought  back,  where  it  would  be 
liable  to  a  trust. 

If  any  body  could  object,  it  would  be  Richard  Connoly,  with  whose 
funds  the  lot  was  purchased,  and  to  whom  a  trust  resulted. 

But  he  cannot  object.     It  appears  from  what  he  told  Carter,  that  he 
consented  to  the  investment,  and  to  the  titles  going  in  the  name  r*2ll 
*of  Murray  :  and  his  becoming  a  party  to  the  marriage  settle-  ^ 
ment  between   his   daughter,  Elizabeth  and  James  Murray,  closes  his 
mouth,  on  the  score  of  a  resulting  trust. 

The  only  doubt  that  could  exist  in  the  matter  was,  whether  the  execu- 
tion of  the  power  of  appointment  by  Mrs.  Connoly  was  sufficient. 

First,  whether  an  interest  was  conveyed  by  Murray  sufficient  to  extend 
to  the  estate  which  she  appointed  I  feel  satisfied  the  objection  is  ground- 
less, upon  a  due  construction  of  the  words  of  the  deed.  I  am  also  satis- 
fied, that  the  purpose  for  which  the  conveyance  was  made,  would  of  itself 
extend  the  interest  parted  from  by  Murray  as  far  as  was  necessary  to 
cover  the  appointment  provided  for  in  the  same  instrument.  (1  Mod.  104  ) 

If  Mrs  Connoly's  appointment  was  invalid,  it  was  not  because  the 
estate  appointed  was  not  out  of  Murray  to  the  fall  extent  of  her  appoint- 
ment ;  nor  because  it  was  not  rendered  subject  to  her  appointment  to  the 
extent  to  which  she  did  appoint ;  but  it  must  be  because  she  was  not 
competent  to  execute  the  power. 

The  objection  is,  that  she  was  not  competent  either  to  receive  or  to 
execute  the  power  without  her  husband's  permission.     If  necessary,  I 
Vol.  L— 34 


166  SOUTH    CAROLINA   EQUITY    REPORTS.  [*211 

should  hold  that  she  was :  the  power  was  a  naked  power  of  appointment, 
not  coupled  with  a  trust.  In  such  case  the  husband  was  not  responsible, 
as  he  would  have  been  for  the  malexecution  of  a  trust;  and  therefore  that 
control,  which  would  be  necessary  to  his  protection  in  the  latter  case,  is 
not  given  him  in  the  former. 

But  I  am  satisfied  from  the  evidence  that  her  husband  consented  to  the 
arrangement,  of  which  this  was  a  part,  before  the  titles  passed  to  Murray., 
Carter's  evidence  shows  this.  Again,  his  joining  in  the  deed  of  settle- 
ment on  James  Murray's  marriage,  is  evidence  of  his  assent  to  the 
appointment.     3  Atk.  196. 

John  M.  Murray's  will  is  dated  several  months  after  Mrs.  Connoly's  was 
admitted  to  probate,  and  recorded  ;  and  by  that  will  he  acquiesces  in 
everything  done.  He  does  not  pretend  to  claim  the  lot.  He  specially 
describes  all  the  real  estate  he  has,  using  the  words,  "  my  7^eal  estate,  to 
wit: — my  three  story  brick  house  on  South  Bay,  '  and  '  my  dwelling  house 
and  grocery  at  the  lower  end  of  King  street."  There  is  no  residuary 
clause  in  the  will.  Here  then  he  describes  two  lots  as  his  whole  real 
estate,  one  of  which  joins  the  one  in  question,  but  never  intimates  a  claim 
to  it. 

^n-in-\       *-A.s  respects  Thompson  and  wife,  the  bill  must  be  dismissed. 
-^   As  respects  Michael  Murray,  the  time  for  his  claiming  the  $1000 
has  not  rolled  round  ;  and,  therefore,  it  must  be  dismissed  as  regards 
him  also. 

The  $1000  claimed  by  Richard  Connoly  cannot  be  recovered  without 
a  cross-bill,  if  with  one.  It  looks  like  a  legal  demand.  It  is  decreed 
that  the  bill  be  dismissed. 

The  plaintiffs  appeal  from  this  decree  on  the  grounds  : — 

1.  That  the  deed  which  empowered  Mrs.  Connoly  to  make  a  will, 
being  a  post-nuptial  deed,  is  invalid  to  confer  such  power  on  a  married 
woman ;  and  that  therefore  the  will  itself  is  void  and  of  no  effect,  being 
executed  during  her  coverture,  and  that  too  without  the  knowledge  of  her 
husband. 

2.  That  the  claim  of  plaintiffs  for  contribution  towards  the'amount  of 
Connoly's  debt,  with  which  the  negroes  were  chargeable,  (both  the  sisters 
having  the  slaves  as  gifts  from  the  father,)  ought  to  have  been  allowed 
by  the  Chancellor,  the  same  being  a  clearly  equitable  and  just  claim  as 
among  volunteers. 

3.  That  Mrs.  Thompson  is,  at  all  events,  entitled  to  dower  of  the  pre- 
mises in  dispute,  she  being  in  her  minority  when  she  renounced  it. 

4.  That  the  decree  is  in  other  respects  contrary  to  the  laws  of  the 
land,  and  unsupported  by  the  weight  of  testimony  in  the  cause. 

Bailey,  for  the  appellants.  On  the  first  ground,  cited  Co.  Lit.  12,  a 
Harg.  n.  6  ;  Co.  Lit.  3,  a. ;  2  Roper,  H.  &  W.  108  ;  2  Rep.  51.  As  to 
the  plea  of  a  purchase  for  valuable  consideration  without  notice,  the  in- 
strument under  which  defendants'  claim  gave  notice,  2  Fowb.  151-66,  §  3  ; 
Grimke  v.  Grimke,  1  Eq.  Rep.  366  ;  Stat.  Eq.  Rep.  292 ;  2  Bail.  332. 

Dunkin,  contra.  As  to  the  power  of  a  feme  covert  to  dispose  of  pro- 
perty by  way  of  appointment,  cited  4  Kent's  Com.  319  ;  3  John  Ch. 
549,  Bradish  v.  Gibbes ;   Hearle  v.  Greenbank,  3   Atk.  696  ;   Sugden, 


*212]  CHARLESTON,    MARCU,    1835.  1G7 

330  ;   2  Yes.  191.     Connoly  may  be  estopped  by  being  a  party  to  the 
marriage  settlement ;  if  not,  a  trust  results  to  him. 

Lance,  in  reply,  cited  1  Cruise,  483  ;  2  Vern.  6t ;  1  Black  447;  4 
Com.  Dig.  Estates  by  Grant,  8  ;  7  Bacon  Ab.  300,  Tit.  will ;  2  Roper, 
90,  100.     As  to  contribution,  1  Mad.  233. 

*0'iSrEALL,  J.  Upon  the  plaintiffs'  thirdground  of  appeal,  it  is  only  r^^oio 
necessary  to  remark,  that  the  Chancellor  says  that  there  was  no  proof  ^  ~ 
of  the  infancy  of  the  plaintiff,  Mrs.  Thompson,  then  Mrs.  Murray,  at  the 
time  she  renounced  her  dower.  This  is  a  very  sufficient  answer  to  the 
ground.  But  without  saying  that  even  infancy  would  avoid  her  renunci- 
ation of  dower,  there  is  another  view  which  would  prevent  her  from  being 
endowed  of  the  premises.  According  to  the  proof,  her  husband  (Mur- 
ray) purchased  the  premises  as  a  trustee  for  Mrs.  Connolly,  and  paid  for 
them  with  money  furnished  by  her.  His  seizen  was  therefore  entirely  in 
trust,  and  of  such  an  estate,  it  was  held  in  the  case  of  Plant  v.  Payne,  2 
Bail.  Rep.  319,  the  wife  could  not  be  endowed. 

As  to  the  plaintiffs'  second  ground,  there  can  be  as  little  difficulty ; 
for  let  it  be  conceded  that  generally,  as  among  volunteers,  there  ought  to 
be  contributions  to  remove  a  general  lien  attached  upon  the  whole  prop- 
erty conveyed  ;  yet  this  case  cannot  have  the  benefit  of  such  a  rule.  For 
a  contribution  can  never  be  asked  for  on  account  of  the  removal  of  a 
common  burden  on  property  conveyed,  unless  there  was  an  inevitable 
necessity  that  a  part  of  the  property  conveyed  should  pay  it.  Screven 
V.  Joyuer,  executor,  and  others,  1  Hill's  Ch.  Rep.  261.  This  inevit- 
able necessity  or  compulsion  to  pay  might  exist  among  volunteers, 
where  the  donor  had  given  to  them  his  whole  estate,  and  was  thereby 
rendered  insolvent,  or  had  given  to  them  a  part  of  his  estate,  and  had 
subsequently  become  insolvent.  But  such  necessity  or  compulsion  cannot 
exist  when  the  donor  is  still  solvent,  and  a  creditor  seizes  and  sells  the 
property  given,  or  the  donee  pays  the  donor's  debts.  For  in  such  a  case 
the  creditor  either  has  no  right  to  sell  the  property  at  law,  or  in  all  events 
in  equity,  and  would  be  forced,  on  a  proper  application  to  exhaust  the 
donor's  estate  before  he  would  be  allowed  to  go  against  property  which 
his  debtor  had  given  away.  In  this  case  it  is  not  pretended  that  the 
donor  is  insolvent ;  and  it  hence  follows  that  there  cannot  have  been  that 
inevitable  necessity  or  compulsion  to  pay  out  of  the  property  conveyed 
to  the  plaintiff,  Mrs.  Thompson,  which  is  necessary  to  entitle  her  to  contri- 
bution from  the  other  donee.  This  view  of  the  case  is  upon  the  supposition 
that  the  plaintiff,  Mrs.  Thompson,  and  her  sister,  Mrs.  Murray,  the  de- 
fendant, had  been  shown  to  be  donees  in  possession  at  the  time  the  sheriff 
sold  the  slave  conveyed  to  Mrs.  Thompson,  and  decides  the  case  upon 
the  most  favorable  footing  on  which  the  plaintiffs  could  put  it. 

*The  first  ground  of  appeal  makes  the  question,  whether  the  r*2i4 
deed  from  John  M.  Murray  to  Stevens  Perry,  the  trustee,  could  L 
empower  Mrs  Connelly  (a  feme  covert)  to  make  a  will  ?  I  am  satisfied, 
both  that  the  power  could  be  conferred  on  a  married  woman,  and  also 
that  it  was  well  executed  by  her  will,  and  that  the  express  consent  of  the 
husband  is  wholly  immaterial  to  the  validity  of  cither.  For  notwith- 
standing in  general  legal  contemplation,  the  existence  of  the  wife  is 
merged  in  that  of  the  husband  during  coverture,  yet  this  rule  is  not  of  such 


168  SOUTH   CAROLINA   EQUITY   REPORTS.  [*214 

universal  application  as  to  render  every  act  of  the  wife  void.  It  seems 
she  may  even  pui'chase  and  hold  real  estate  without  the  express  consent 
of  her  husband— that  her  acquisition  cannot  be  defeated  by  any  one  but 
him,  so  long  as  he  may  live.  For  in  Coke,  upon  Littleton  3,  a.  122-3, 
it  is  said,  "  a/eme  covert  cannot  take  any  thing  of  the  gift  of  her  husband, 
but  is  of  capacity  to  purchase  of  others  without  the  consent  of  her  husband, 
and  of  this  opinion  was  Littleton  in  our  books  and  in  this  book,  section 
677  ;  but  her  husband  may  disagree  thereto  and  divest  the  whole  estate  ; 
but,  if  he  neither  agree  nor  disagree,  the  purchase  is  good  ;  but  after  his 
death,  albeit  her  husband  agreed  thereto,  yet  she  may,  without  cause  to  be 
alleged,  waive  the  same,  and  so  may  her  heirs  also,  if  after  the  decease  of 
her  husband  she  herself  agreed  not  thereunto."  In  this  case  neither  the 
husband  nor  the  heirs  of  the  wife  ask  to  set  aside  the  conveyance  to  the 
wife  :  the  plaintiffs  regard  the  conveyance  as  good,  but  the  power  to  ap- 
point as  void.  But,  if  the  wife  could  purchase,  she  might  on  any  condi- 
tions, and  under  any  limitations,  and  it  is  the  privilege  of  the  husband 
during  coverture,  of  herself  or  her  heirs  after  his  death,  to  affirm  or  dis- 
affirm the  whole  contract ;  a  part  cannot  be  taken  and  a  part  rejected — 
all  or  none  must  stand. 

If,  however,  the  wife  was  incompetent  to  execute  the  power  conferred 
on  her  by  the  deed,  then  her  will  would  be  void,  and  the  land  must  either 
revert  to  the  grantor,  Murray,  or  be  distributed  as  her  estate.  It  seems 
to  be  well  settled,  "that  every  person  capable  of  disposing  of  an  estate 
actually  vested  in  himself,  may  exercise  a  power  or  direct  a  conveyance  of 
the  land.  The  rule  goes  further,  and  even  allows  an  infant  to  execute 
a  power  simply  collateral  and  that  only  ;  and  a  feme  covert  may  execute 
any  kind  of  power,  whether  simply  collateral,  appendant  or  in  gross,  and 
it  is  immaterial  whether  it  was  given  to  her  while  sole  or  married. 
The  conciirreyice  of  the  husband  is  in  no  case  necessary."  (4  Kent 
Cora.  318,  319.)  This  is  the  language  of  one  of  the  greatest  chancery 
^^, .-]  lawyers  of  the  present  *day,  Chancellor  Kent;  aud  it  cannot  be 
-'  necessary  to  do  more  than  refer  to  his  clear  statement  of  princi- 
ples, by  which  this  part  of  this  case  must  be  put  at  rest.  It  may  be  well 
however  to  look  to  the  manner  in  which  an  appointment  operates,  to  show 
that  no  objection  can  in  fact  exist  to  an  execution  of  it  by  a,  feme  covert. 
The  appointee  is  merely  designated  by  the  person  making  the  appointment ; 
his  estates  and  rights  are  derived  from  the  deed  creating  the  power.  As 
is  said  in  Bradish  v.  Gibbs,  3  J.  C.  R.  550,  the  principle  is  well  esta- 
blished that  when  a  person  takes  by  execution  of  a  power,  he  takes  under 
the  authority  of  that  power.  The  meaning  is,  as  Lord  Hardwicke  ex- 
presses it,  that  the  person  takes  in  the  same  manner  as  if  the  power  and 
instrument  executing  the  power  had  been  incorporated  in  one  instrument, 
and  as  if  all  that  was  in  the  instrument  executing  had  been  expressed  in 
that  giving  the  power.  This  being  the  case,  and  the  appointee  taking 
nothing  from  the  wife,  but  all  from  the  person  creating  the  power,  there 
can  be  no  reason  to  avoid  her  act  on  account  of  coverture,  the  disability 
of  which  is  intended  both  for  the  protection  of  the  husband  and  also  for 
herself. 

It   is   ordered   and   decreed   that   Chancellor   Johnston's   decree   be 
affirmed. 

Johnson,  J.,  and  Harper,  J.,  concurred. 


1 


*215]  CHARLESTON,  MARCH,  1835.  169 

Ex  parte  Job  Palmer,  Surviving  Executor  of  Samuel  Miller, 

deceased. 

Tenant  for  life  mfiy  be  paid  for  improvements  when  he  finishes  buildings  left 
unfinished.  [*217] 

An  executor  will  be  allowed  comp^sation  for  improvements  made  by  him  on  real 
estate,  when  they  are  such  as  the  Court  would  have  authorized;  and  whether  they 
ate  such  depends  on  the  fact  whether  they  are  beneficial  to  all  concerned.  [*217] 

O'Neall,  J.  In  the  case  of  Samuel  W.  Miller,  legatee  of  S.  Miller 
V.  The  Executor  and  Executrix  of  Samuel  Miller  and  others,  the  decretal 
order  was  made  out  of  which  this  application  arises.  In  that  case  it  was 
adjudged  in  the  constructiou  of  the  will  of  the  petitioner's  testator,  that 
the  estate  for  life  by  it  devised  to  the  widow,  then  the  wife  of  the  petitioner, 
did  not  commence  until  Job  P.  Miller,  a  son  of  the  testator,  attained  to 
the  age  of  twenty-one  years.  Before  that  event,  in  1799,  as  appears  by 
the  same  decree,  the  petitioner  built  the  house  ou  the  unimproved  lot 
devised*  to  the  widow  of  the  testator  for  her  life.  The  petitioner  r^,^^(> 
was  the  executor  of  the  testator's  will,  and  at  the  time  he  erected  '- 
the  house,  was  the  husband  of  the  widow,  und  therefore  tenant  per  auter 
vie  in  expectancy.  There  seems  to  be  no  doubt  that  he  acted  with  an 
intention  to  benefit  tlie  estate  ;  and  at  the  same  time  not  to  prejudice 
himself  by  building  without  a  chance  of  reimbursement.  He  was  advised 
by  the  Ordinary  of  Charleston  District  in  1198,  to  erect  the  building, 
"as  it  will  greatly  conduce  to  the  benefit  of  the  estate,"  and  if,  upon  the 
death  of  the  tenant  for  life,  "the  executor  should  not  be  fully  reimbursed 
for  the  expenses  of  the  said  building,  the  Court  of  Equity  will  compel  the 
children  to  bear  their  proportion  of  the  buildings  so  descending."  I  have 
thus  stated  such  additional  facts  as  did  not  appear  in  the  decree  upon  the 
petition,  and  which  may  be  material.  It  seems  to  me  that  there  is  no 
well  founded  objection  to  the  proceeding  by  petition.  The  point  now 
made  was  reserved  in  the  former  decree,  and  leave  given  to  the  petitioner 
to  make  application  as  he  has  done.  The  proceedings  which  may  be  had 
on  the  petition  will  be  in  the  case  of  Miller  v.  The  Executor  of  Miller, 
deceased.  That  some  of  the  party  to  that  suit  is  dead,  is  no  objection, 
if  their  representatives  be  made  parties  to  this  petition,  as  appears  to 
be  done. 

After  divesting  the  case  of  these  preliminary  objections,  it  will  be 
necessary  to  examine  the  right  of  the  petitioner  to  be  reimbursed  for  the 
house  and  other  buuildings  erected  by  him  on  the  vacant  lot,  which,  by 
his  testator's  will,  after  Job  P.  Miller  became  fully  of  age,  was  devised  to 
the  testator's  widow,  late  the  wife  of  the  petitioner. 

I  agree  with  the  Chancellor,  that  the  former  decree  does  not  conclude 
the  respondents  from  objecting  to  any  allowance  being  made  to  the 
petitioner  on  that  account :  it  is  true  that  it  would  seem  that  the  Chan- 
cellor thought,  when  he  drew  the  former  decretal  order,  that  the  peti- 
tioner was  entitled  to  compensation  ;  but  still  there  was  no  adjudication 
that  he  was  so  entitled.  It  was  a  mere  reservation  of  the  question  until 
the  life  estate  fell  in,  "  and  then  all  parties  (says  the  decree)  are  to  be  at 
liberty  to  apply  by  petition  to  this  Court  to  adjust  the  mode  of  settlement 
or  compensation  between  Mr.  Palmer,  as  owner  of  the  house,  and  the 
owners  of  the  lot."     There  is  nothing  in  this  direction  which  can  operate 


170  SOUTH    CAROLINA    EQUITY   REPORTS.  [*216 

to  estop  the  parties  from  now  making  the  question,  whether  the  petitioner 
is  entitled  to  be  paid  for  his  improvements  ?  For,  at  the  most,  it  cannot 
have  any  effect  beyond  a  mere  interlocutory  order;  it  does  *not 
""  -'  end  the  controversy  between  the  parties,  and  hence  is  not  a  final 
decree,  which  conld  alone  estop  the  parties  from  the  cpiestion.  It  seems 
however  to  me  that  the  opinion  of  the  Chancellor,  which  he  seems  to 
have  entertained  in  his  former  decree,  was  right,  and  that  his  present 
conclusion  has  resulted  from  not  having  the  facts  of  the  case  so  fully 
before  him  as  they  were  when  he  pronounced  his  original  decree.  I 
agree  that  generally  a  tenant  for  life  is  not  to  be  paid  for  improvements ; 
but  to  that  rule  there  may  be  exceptions,  as  is  manifestly  the  case  where 
a  tenant  for  life  goes  on  and  finishes  buildings  left  by  the  testator  in  an 
unfinished  state.  Hibbert  v.  Cook,  1  Sim.  &  St.  552.  The  reasons  of 
that  exception  may  be  useful  to  us  here.  They  certainly  are  two-fold, 
first,  that  it  is  beneficial  to  the  remainder ;  and  second,  the  implied  inten- 
tion of  the  testator  from  the  state  of  the  property,  its  unfinished  con- 
dition, that  it  should  be  finished  out  of  his  estate  in  order  to  render  it 
useful  to  both  the  tenant  for  life  and  the  remainder-men.  In  the  case 
before  us  both  of  these  reasons  apply  directly :  it  is  alleged  that  the  im- 
provement was  a  beneficial  one  to  all  concerned  ;  and  it  is  manifest  that 
the  lot  was  most  probably  useless  to  the  tenant  for  life  unless  it  was  im- 
proved. We  should,  therefore,  perhaps,  (were  it  necessary  to  do  so,) 
be  authorized  to  presume  that  the  testator's  intention  was  that  the  lot 
should  be  improved,  as  well  for  the  use  of  the  tenant  for  life  as  of  the 
remainder-men. 

But  it  is  not  necessary  to  resort  to  the  doctrine  between  tenants  for 
life  and  in  remainder,  in  order  to  decide  the  question.  For  the  house  and 
other  improvements  were  made  in  1199,  six  years  before  the  petitioner's 
wife's  life  estate  commenced  ;  he  built  as  executor  and  under  the  advice 
of  the  ordinary.  In  Inwood  v.  Twyne,  2  Ed.  152,  Lord  Chancellor 
Northington  stated  the  rule  which  always  governs  this  Court  in  passing 
upon  the  acts  of  trustees.  He  said,  "I  can  conceive  many  cases  where  a 
conversion  of  such  estate  (personal  into  real)  might  be  made  by  truste'es 
or  guardians,  and  that  this  Court  would  support  and  approve  their  con- 
duct ;  and  it  would  be  strange  to  say  that  trustees  would  be  censured  in 
this  Court  for  doing  what  the  Court  would  have  ordered  to  have  been 
done." 

Under  this  rule  the  question  is,  were  the  improvements  such  as  the 
Court  would  have  authorized  the  executor  to  make  ?  This  would  have 
^g,Q-^  depended  upon  the  fact  whether  it  would  have  been  *beneficial  to 
"  -'  all  concerned  as  devisees.  On  looking  back  to  Mr.  Miller's  will, 
I  perceive  that  he  has  directed  all  his  estate,  real  and  personal,  (after 
payment  of  his  debts,)  to  be  kept  together  for  the  joint  use  and  mainte- 
nance of  his  wife  and  children  until  liis  son.  Job,  arrived  at  the  age  of 
twenty-one  years.  This,  I  think,  constituted  a  strong  reason  for  the  im- 
provement of  the  lot :  while  vacant  it  would  be  unproductive  capital ; 
when  improved  its  rents  or  use  might  contribute  to  the  purposes  of  the 
trust,  for  the  widow  and  children.  But  the  fact  that  it  might  have  been 
such  an  improvement  as  the  Court  would  have  ordered,  is  a  ground  to 
retain  the  petition,  and  to  submit  the  question  to  the  examination  of  the 
Commissioner.     In  Myers  v.  Myers,  2  M'C.  C.  R.  265,  the  defendant,  an 


*218]  CHARLESTOX,    MARCH,    1835.  171 

executor,  was  allowed  for  improvements  on  the  trust  estate,  on  the  ground 
that  it  was  for  the  benefit  of  the  cedui  que  trusts.  The  petitioner  it 
seems  to  me  is  entitled  to  the  benefit  of  the  same  rule.  He  made  the 
improvements  as  executor,  and  if  they  were  such  as  were  beneficial  to  the 
estate,  and  such  as  a  prudent  man,  the  owner  of  such  an  estate  as  Mr. 
Miller's,  would  be  willing  to.  make,  then  the  petitioner  is  entitled  to 
compensation. 

But  he  is  not  entitled  to  more  than  the  present  value  of  the  improve- 
ments, to  be  ascertained  by  the  enhanced  value  which  the  said  improve- 
ments have  given  to  the  lot.  If  the  income  from  the  house  and  lot  from 
its  erection  (as  the  former  decree  allowed  Mr.  Palmer  to  retain  the  whole 
without  an  account,)  should  on  the  reference  appear  to  have  been  more 
than  the  interest  on  the  sum  of  money  expended  by  Mr.  Palmer,  in 
making  improvements  and  the  costs  of  necessary  repairs,  then  such  excess 
will  be  deducted  from  the  present  value  of  the  improvements. 

It  is  ordered  and  decreed  that  Chancellor  De  Saussure's  decree,  sus- 
taining the  demurrer  to  this  petition,  be  reversed,  and  that  it  be  referred 
to  the  Commissioner  to  ascertain  and  report  whether  the  said  improve- 
ments were  beneficial  to  and  proper  for  the  estate ;  and  if  so,  then  the 
amount  to  which  the  petitioner  is  entitled  on  account  of  the  said  improve- 
ments, on  the  principles  and  according  to  the  directions  contained  in  this 
opinion. 

Johnson,  J.,  and  Harper,  J.,  concurred. 


J.  B.  Barnwell,  and  others,  v.  John  Porteus,  and  others.       [*219 

Under  the  Act  of  1693,  (P.  L.  3  )  a  deed  recorded,  although  not  within  six  months, 
(as  required  by  the  Act  of  1785,)  acquires  preference  over  a  prior  unrecorded 
mortgage.  [*220] 

A  junior  judgment  creditor  is  not,  under  the  Act  of  1785,  entitled  to  preference 
over  an  unrecorded  mortgage.  [*221] 

[The  Reporter  not  having  been  furnished  with  any  other  papers  in  this 
case,  can  present  no  other  report  than  that  contained  in  the  following 
opinion  of  the  Appeal  Court.] 

Evans,  J.  (sitting  for  Harper,  J.)  This  case  was  decided  by  Harper, 
J.,  sitting  for  Chanceller  De  Sau.ssure,  at  Coosawhatchie,  in  January, 
1833.  On  examining  the  decree,  there  is  no  ground  for  questioning  its 
correctness,  as  to  the  defendants,  John  Porteus  and  Dr.  Fuller;  but  so 
much  of  the  decree  as  relates  to  the  rights  of  the  defendant,  Arthur  G. 
Rose,  it  is  thought,  is  erroneous,  and  it  is  ray  duty  to  assign  the  reasons 
for  that  opinion.  It  is  very  clear,  as  the  presiding  Judge  says  in  his  de- 
cree, that  the  "case  was  very  imj^erfectly  presented  on  the  Circuit;"  an 
important  feature  in  the  case,  and  that  which  probably  led  to  the  error  in 
the  decree,  was  not  brought  to  the  view  of  the  Judge,  viz:  that  tlie  deed 
from  the  sheriff  to  Rose,  was  recorded  in  the  Register's  Office  of  Beau- 
fort district.  The  bill  was  filed  to  foreclose  a  mortgage  from  John 
Porteus  to  E.  W.  Barnwell.     The  mortgage  was  never  recorded.     Sub- 


172  SOUTH    CAROLINA   EQUITY   REPORTS.  [*219 

scquently  to  the  date  of  the  mortgage,  the  sheriff  levied  on  a  part  of  the 
mortgaged  premises,  and  sold  the  same  under  a  fieri  facias  to  the  de- 
fendant, A.  G.  Rose,  who  being  the  oldest  judgment  creditor,  did  not 
pay  the  money,  but  entered  on  his  execution  a  credit  for  the  amount  of 
his  bid.  The  deed  from  the  sheriff  to  Rose  was  recorded  in  the  Clerk's 
office  of  Beaufort  district,  but  not  until  the  expiration  of  six  months.  On 
tliis  statement  of  facts  two  questions  present  themselves.  1st.  Does  the 
deed  of  the  sheriff  to  Rose,  being  recorded,  take  precedence  of  the  plain- 
tiff's unrecorded  mortgage.  2d.  Has  Rose's  judgment  against  Porteus 
a  preference  to  tlie  plaintiff's  mortgage,  under  the  45th  section  of  the 
Act  of  1785. 

Rose's  deed  not  having  been  recorded  within  six  months,  can  acquire 
no  preference  under  the  Act  of  1785,  commonly  called  the  County  Court 
Act.  But  by  the  Act  of  1698,  P.  L.  page  3,  "that  sale,  conveyance  or 
mortgage  of  lands  or  tenements  which  shall  be  first  recorded  in  the  Regis- 
ter's office  in  Charleston,  shall  be  taken,  deemed,  adjudged,  allowed  of, 
and  held  to  be  the  first  sale,  conveyance  or  mortgage,  and  be  good,  firm, 
and  substantial  in  all  Courts  of  judicature  within  South  Carolina."  At 
*99ni  ^^'®  ^^^'^  ^^  ^'^'''^  -^^^'  *CIharleston  was  the  principal  settlement  in 
-'  the  State.  It  was  the  seat  of  government,  and  the  only  place  of 
judicature.  This  act  speaks  only  of  deeds  recorded  in  Charleston,  yet  I 
apprehend  when  other  offices  for  registering  of  deeds  were  established,  the 
provisions  of  the  Act,  apply  to  deeds  recorded  in  such  offices,  as  well  as 
to  those  recorded  in  Charleston.  By  the  45th  section  of  the  County  Court 
Act,  it  is  declared  that  "  no  conveyance  of  lands,  tenements,  or  heredita- 
ments shall  pass,  alter  or  change  from  one  person  to  another,  any  estate 
of  inheritance  in  fee  simple,  or  any  estate  for  life,  or  lives,  nor  shall  any 
greater  or  higher  estate  be  made,  or  take  effect,  in  any  person  or  persons, 
or  any  use  thereof,  by  bargain,  sale,  lease,  and  release,  or  other  instrument, 
unless  the  same  shall  be  made  in  writing,  signed,  sealed  and  recorded  in 
the  Clerk's  office  of  the  county  where  the  land  mentioned  to  be  passed  and 
granted  shall  be,  in  manner  following,  viz. :  If  the  persons  who  shall  make 
and  seal  such  instrnment  in  writing,  shall  be  resident  within  the  State ; 
then  the  same  sliall  be  recorded  withing  six  months  from  the  signing, 
sealing  and  delivery."  And  if  any  deed  shall  not  be  recorded  within  the 
time  mentioned  in  the  Act,  "  such  deed  or  other  conveyance  shall  be  legal 
and  valid  not  only  as  to  the  parties  themselves  and  their  heirs,  but  shall  be 
void  and  incapable  of  barring  the  rights  of  such  persons,  claiming  as 
creditors,  or  under  subsequent  purchases,  recorded  in  the  manner  pre- 
scribed by  the  Act."  Now,  although  by  the  Acts  of  the  12th  and  17th 
of  March,  1785,  the  whole  State  is  laid  off  into  counties,  yet  practically, 
those  acts  never  went  into  operation  in  the  districts  of  Georgetown, 
Charleston  and  Beaufort.  But  by  the  Act  of  1789,  P.  L.  485,  it  was  de- 
clared sufficient  to  record  deeds  in  the  Register's  office  where  the  land 
lay,  and  where  the  County  Courts  were  not  established.  It  is  manifest 
that  neither  the  plaintiff  nor  Rose  has  complied  with  this  Act,  and  but 
for  the  Act  of  1698,  P.  L.,  p.  3,  the  unrecorded  mortgage  would  take 
precedence  of  Rose's  deed  ;  but  as  Rose  has  recorded  his  deed,  he  has 
acquired  a  preference  in  pursuance  of  the  Act  of  1698. 

On  the  2d   ground,   it  is  contended   that  Rose,   being   a  judgment 
creditor,  is  entitled  to  preference  over  the  plaintiff's  mortgage,  under  the 


*220]  CHARLESTON,    MARCH,    1835.  173 

clause  of  the  Act  of  1785,  above  recited.  It  is  exceedinp;ly  diflioult  to 
say  what  creditors  are  meant  by  the  act,  whether  all  who  come  under 
that  description,  or  only  such  as  claim  under  some  instrument  of  writing, 
which  may  be  recorded.  If  this  were  *now  a  new  question,  I  r^.^^, 
should  have  great  difficulty  in  making  up  an  opinion,  but  I  am  L 
relieved  by  former  adjudications  from  any  difficulty  on  this  point,  so  far 
as  it  relates  to  this  case.  In  the  case  of  Ash  r.  Ash,  1  Bay,  305,  Chief 
Justice  Rutledge,  says,  "  a  mortgage  is  not  void  by  not  being  on  record. 
The  only  risk  the  mortgagee  ran,  was  the  chance  of  another  deed  from 
the  seller  (Berwick)  for  the  same  land,  being  put  on  record  first :"  and 
accordingly  in  the  case  of  Ash  v.  Livingston,  2  Bay,  80,  the  money 
arising  from  the  sale,  was  recovered  from  the  judgment  creditor  to 
whom  it  had  been  paid,  in  a  suit  brought  by  the  executor  of  the  mort- 
gagee. It  is  true  that  the  mortgage  in  this  case  was  anterior  to  the  Act 
of  1785,  and  it  may  be,  was  not  within  its  provisions  ;  yet  the  Court  lay 
no  stress  on  this  circumstance,  and  the  principle  is  laid  down  broadly, 
that  as  to  a  judgment  creditor  junior  to  the  mortgage,  the  latter  is  good 
without  recording.  In  the  case  of  Penman  v.  Hart,  2  Bay,  25,  the 
Court  appear  to  have  decided  on  the  grounds  that  the  provisions  of  the 
County  Court  Act  did  not  extend  to  cases  arising  in  those  parts  of  the 
State  where  the  County  Court  system  had  never  gone  into  practical 
operation  ;  yet  the  case  of  Ashe  v.  Ashe  is  referred  to,  and  its  authority 
not  questioned.  So  far  as  I  have  been  able  to  ascertain,  the  principle  of 
that  case  has  been  regarded  as  the  settled  law  of  the  land  for  many 
years. — I  speak  from  my  own  experience  when  I  say  twenty  years  at  least. 
Deeds  in  fee  simple  rest  on  the  same  footing  as  mortgages  in  this  par- 
ticular, and  if  the  latter  are  to  be  postponed  in  favor  of  creditors,  so  also 
must  the  former.  If  this  doctrine  were  now  reversed,  there  is  no  conjec- 
turing the  consequences  in  unsettling  the  titles  of  the  people  of  this  State 
to  their  lands.  In  Ravenal  &  Smith  v.  Smith,  1  M'C.  Ch.  Rep.  148, 
Judge  Nott,  speaking  of  the  case  of  Ashe  v.  Ashe,  says,  "I  must  confess 
I  never  have  been  perfectly  satisfied  with  that  decision,  but  it  has  been 
received  and  acted  on  as  the  law  for  upwards  of  thirty  years,  and  ought 
not  to  be  questioned."  Indeed,  so  well  did  I  suppose  the  question  to  be 
settled,  that  an  unrecorded  mortgage  or  deed,  if  free  from  all  taint  of 
fraud,  was  good  against  one  claiming  as  a  creditor  merely  without  prior 
lien,  that  I  was  somewhat  startled  when  I  heard  the  question  gravely 
made  and  argued.  If  the  principle  be  wrong,  let  it  be  altered  for  the 
future  by  the  legislature  ;  but  it  is  at  all  times  unsafe  for  a  Court^  to 
reverse  a  decision,  although  it  may  have  been  wrongly  decided  origi- 
nally, which  has  been  acted  on  so  long  as  to  become  a  rule  of  property. 

*It  is  therefore  Ordered  and  decreed,  that  unless  the  said  John  r*222 
Porteus  shall,  on  or  before  the  1st  Monday  in  October  next,  pay 
up  the  amount  due  on  his  said  mortgage,  the  Commissioner  shall,  on  the 
said  day,  or  at  some  subsequent  public  sale  day,  sell  all  the  laud  described 
in  the  mortgage  mentioned  in  the  bill,  except  so  much  thereof  as  is  in- 
cliided  in  the  sheriff's  deed  to  A.  G.  Rose.  The  sale  to  be  on  a  credit 
of  six  months,  with  a  mortgage  and  personal  security.  The  costs  to  be 
paid  out  of  the  proceeds  of  the  sale,  and  the  balance,  or  so  much  as  will 
satisfy  the  mortgage,  to  be  paid  to  the  plaintiffs  when  collected. 

Johnson,  J.,  and  O'Xeall,  J.,  concurred. 


174  SOUTH    CAROLINA    EQUITY    REPORTS.  [*222 


Thomas  IIargroves  and  Susan,  his  Wife,  formerly  Susan  Wheeler  v 
Edward  Meray  and  Sarah  A.   Meray,   his   Wife,   and  John  T. 

Vausse. 

Equity  will  entertain  jurisdiction  of  a  bill  by  the  administratrix  to  make  property 
conveyed  in  a  voluntary  deed  of  her  intestate,  liable  to  his  debts,  and  to  prevent 
it  from  being  removed  from  the  State.  [*2126] 

When  in  a  settlement  by  the  husband  for  the  separate  maintenance  of  his  wife,  the 
trustee  covenants  to  save  the  husband  harmless  against  the  wife's  debts,  this  is 
regarded  such  a  valuable  consideration  as  will  protect  the  property  from  the  hus- 
band's debts.  [*226] 

A  deed  from  a  man  to  a  woman  with  whom  he  had  lived  in  a  state  of  adultery,  held 
to  be  voluntary,  and  the  property  thereby  conveyed,  (after  exhausting  the  assets 
at  the  death  of  the  grantor,)  decreed  liable  to  his  debts.  [*227] 

Settlement  on  a  wife,  when  decreed.  [*228] 

On  the  5th  of  April,  1821,  William  Wheeler  a  married  man,  gave  by 
deed  to  Sarah  A  Evans,  a  girl  who  was  then  with  child  by  him,  seven 
negroes  in  the  following  manner,  viz  : 

"  South  Carolina,  District  of  Charleston. — Know  all  men  by  these 
presents,  that  I,  William  Wheeler,  of  the  above  named  parish,  and  in  the 
said  district,  do  hereby  give  and  bequeath,  and  by  these  presents  do  give 
and  bequeath  unto  Sarah  A.  Evans,  daughter  of  Mary  Evans,  widow  of 
John  Evans,  at  present  living  and  residing  in  the  parish  above  mentioned, 
all  that  family  of  negroes,  viz  :  April,  Caesar,  Chloe,  Betty,  Nancy,  Patty 
and  Ellen,  to  hold  and  keep  the  said  negroes,  with  the  future  issue  and 
increase  during  life,  and  at  the  expiration  of  the  life  of  the  within  named 
Sarah  A,  Evans,  all  that  is  herein  bequeathed  shall  go  to  her  heirs  for- 
ever. But  in  case  she  has  no  heirs,  and  her  brother,  Elias  Evans,  be 
living,  at  the  time  of  her  death,  it  is  my  will  and  desire  that  he  may  be 
fully  empowered  with  authority  to  act,  and  by  these  presents  under  my 
hand  and  seal,  he  is  considered  by  me,  after  the  death  of  the  within 
Sarah  A.  Evans,  to  be  the  sole  owner  of  the  within  mentioned  negroes, 
*2231  ^^^^^  ^^^^  provisions  already  inserted  in  the  *deed  of  gift.  In 
witness  whereof  I  have  hereunto  affixed  my  hand  and  seal,  this 
5th  day  of  April,  1827."  Signed  and  sealed  in  the  presence  of  three 
witnesses." 

On  the  19th  March,  1828,  the  plaintiff,  Susan,  then  Wheeler's  wife, 
having  separated  from  him,  filed  her  bill  for  alimony,  alleging  the  inter- 
course between  him  and  Sarah  A.  Evans,  as  the  cause  of  separation.  On 
the  20th  May  following,  the  bill  for  alimony  was  compromised  by  Whee- 
ler's conveying,  by  a  deed  of  separation,  to  a  trustee,  for  his  wife,  the 
property  that  was  her's  before  marriage. 

The  deed  was  signed  by  all  the  parties,  and  the  trustee  covenants  to 
save  him  harmless  against  his  wife's  debts.  Sarah  A.  Evans  married 
Moray,  but  left  him  and  returned  to  Wheeler,  with  whom  she  continued 
to  live.  In  July,  1829,  Wheeler  died  intestate  ;  administration  was  com- 
mitted to  the  plaintiff;  the  widow.  Meray  seized  the  negroes  contained 
in  the  paper  of  5th  April,  1821,  and  with  the  assistance  of  the  other 
defendant,  Vausse,  was  carrying  them  off  out  of  the  State.  The  adminis- 
tratrix filed  this  bill  for  an  injunction  to  prevent  the  negroes  from  being 
carried  off";  to  have  an  account  of  Wheeler's  debts,  and  directions  for  the 


*223]  CHARLESTON,  MARCH,  1S35.  175 

payment  of  them,  and  the  paper  aforesaid,  if  fraudulently  obtained,  set  aside 
or  reduced,  if  it  should  be  determined  to  come  within  the  provisions  of  the 
Act  of  the  Assembly  respecting  gifts,  to  the  injury  of  wife  and  children; 
or  the  negroes  disposed  of  as  assets  of  Wheeler,  if  the  i)aper  should  be 
declared  a  will — and  for  general  relief. 

The  injunction  was  granted  on  the  18th  September,  1820,  and  the 
defendants  answered— Edward  Meray  insisting  on  his  marital  rights, 
Sarah  Meray  claiming  her  equity  under  the  instrument,  and  Yausse 
claiming  the  negroes  as  the  agent  of  Meray,  and  denying  the  jurisdictiou 
of  the  Court,  as  well  as  all  fraud. 

In  January,  1830,  the  cause  was  heard  by  Chancellor  De  Saussure 
upon  the  bill,  answers  and  evidence. 

His  Honor  ordered  a  reference  to  inquire  into  the  amount  of  Wheeler's 
estate  and  his  debts. 

The  defendant,  Meray,  appealed,  and  in  April,  1831,  the  Court  of 
Appeals  sustained  the  jurisdiction,  and  extended  the  order  of  reference 
to  inquire  whether  the  paper  was  intended  as  a  deed  or  will,  and  to 
admit  parol  evidence  on  the  point,  reserving  the  question  as  to  creditors 
for  the  coming  in  of  the  report.  Susan  Wheeler,  the  plaintiff,  married 
with  the  other  plaintiff,  Hargroves,  and  the  *suit  was  continued  r^c)C)i 
by  a  bill  of  revivor  in  their  names.  She  rendered  her  account  as  ^ 
administratrix,  and  the  master  reported  the  claims  rendered  against  the 
estate.  The  plaintiff  having  elected  to  take  her  dower,  the  lands  were 
sold,  and  all  the  estate  of  Wheeler  is  exhausted ;  the  only  assets  to  pay 
his  debts  are  the  negroes  which  he  conveyed  to  defendant,  Sarah,  and 
the  negroes  and  cattle  which  he  conveyed  to  the  plaintiff's  trustee,  as 
above  mentioned.  The  commissioner  also  took  the  evidence  of  Mary 
Evans,  mother  of  the  defendant.  She  stated  that  the  defendant  was  put 
to  live  with  Wheeler's  wife,  and  was  debauched  by  him  when  under  fifteen 
years  of  age  ;  her  child  was  born  before  she  was  sixteen.  That  the  paper 
of  the  5th  April,  1821,  was  handed  to  witness  by  Mrs.  Wheeler,  and 
Wheeler  told  her  he  had  done  wrong,  and  made  over  the  negroes  ; 
and  Mrs.  Wheeler  told  her  the  negroes  were  intended  as  a  compensation, 
and  that  she  had  selected  them  herself;  the  child  was  not  then  born. 
That  Sarah  went  from  Wheeler's  house  to  a  house  on  his  plantation,  and 
took  one  of  the  negroes  with  her.  Witness  had  the  paper  recorded  by 
the  advice  of  Mr.  Cordes.  Mrs.  Wheeler  left  her  husband,  as  witness 
believes,  by  the  advice  of  her  friends,  and  Sarah  went  back  to  his  house 
with  her  child.  She  executed  a  paper,  as  witness  believes,  renouncing 
all  right  to  the  negroes  daring  Wheeler's  life.  Meray  was  Wheeler's 
overseer,  and  married  Sarah  with  his  consent.  A  week  before  the  mar- 
riage, Sarah  left  Wheeler  and  came  to  witnesses'  house.  Meray  knew  of 
the  paper  and  promised  to  make  a  settlement,  but  Sarah  would  not  wait 
for  it.  She  was  soon  anxious  to  return  to  Wheeler  and  did  so,  \yhich 
caused  a  separation.  She  was  with  Wheeler  when  he  died,  and  refused, 
after  his  death,  to  return  to  Meray,  as  she  said  she  was  afraid  he  would 
treat  her  child  ill. 

Mr.  Brougton's  letter  (which  by  consent  was  received  in  evidence) 
states  the  particulars  respecting  a  deed  he  prepared  at  the  request  of 
Wheeler,  and  with  the  assent  of  Sarah  Evans,  to  correct  a  mistake  in  the 
deed  of  April,  1827,  as  the  intention  was  to  give  the  property  after  his 


176  SOUTH  CAROLINA    EQUITY    REPORTS.  [*224 

death,  which  was  executed.     Neither  this  paper  nor  the  paper  of  April, 
1827,  can  be  found. 

At  January,  1834,  the  cause  was  heard  by  Chancellor  De  Saussure, 
who  made  his  decree  declaring  the  paper  of  April,  1821,  a  will,  and  the 
negroes  only  liable  to  creditors  after  the  property  conveyed  to  the  use  of 
the  plaintiff,  Susan,  by  the  deed  of  separation. 

^.-)„- -]  *Froui  this  decree  the  plaintiffs  appealed,  and  insist  that  whether 
^  -J  the  paper  of  April,  1827,  be  considered  a  deed  or  will,  the  property 
thereby  disposed  of  is  subject  to  the  claims  of  Wheeler's  creditors,  and 
that  between  the  deed  to  the  plaintiff's  trustee  and  the  paper  under  which 
defendants  claim,  the  plaintiffs  are  entitled  to  a  preference,  because — 

1.  The  plaintiff,  as  an  injured  and  innocent  wife,  was  entitled  to  ali- 
mony ;  and  the  covenant  of  her  trustee  was  an  additional  consideration, 
and  the  settlement  was  moderate  and  reasonable,  consisting  only  of  the 
property  she  brought  to  Wheeler  on  her  marriage. 

2.  Because  the  provision  for  Sarah  Meray  is  at  best  purely  voluntary  ; 
and  there  is  no  ground  for  distinguishing  her  case  from  that  of  any  other 
woman  freely  embracing  a  life  of  criminality,  and  accepting  from  a  mar- 
ried man  the  reward  of  prostitution. 

The  defendant,  Meray,  also  appealed,  and  now  moved  that  the  bill  be 
dismissed — 

1.  Because  the  administratrix  has  shown  no  equity  to  entitle  her  to  sue 
in  this  Court ;  and  if  it  be  held  that  the  negroes  are  part  of  Wheeler's 
estate,  there  is  a  plain  and  adequate  remedy  at  law. 

2.  Because,  if  the  paper  is  a  deed,  even  if  a  life  estate  was  reserved,  as 
intended,  to  Wheeler,  yet,  on  his  death,  the  estate  was  absolute  in  Sarah 
A.  Evans,  and  the  marital  rights  of  the  husband  attached  by  his  reduc- 
tion into  possession. 

3.  Because  if  the  paper  is  a  will,  none  but  an  executor  or  administrator 
with  the  will  annexed  can  sue  for  the  property. 

O'Neall,  J.  The  plaintiffs  have  not  insisted  on  regarding  the  paper 
under  which  the  defendants  claim  as  a  will ;  and,  as  it  appears  it  may  be 
more  beneficial  to  the  defendant,  the  donee,  Sarah,  to  regard  it  as  a  deed, 
it  will  be  so  treated  in  this  opinion.  For  it  is  beyond  all  doubt,  that  if 
it  is  a  will,  the  property  conveyed  by  it  would  be  not  only  liable  to  debts, 
but  also  that  only  one-fourth  part  of  the  nett  value  of  Wheeler's  estate 
at  his  death,  after  payment  of  his  debts,  could  pass  under  the  said  paper 
regarded  as  a  will  to  the  said  Sarah. 

It  is  first  contended  by  the  defendants,  Meray  and  Yausse,  that  the 
Court  has  no  jurisdiction  of  the  case  :  that  objection  was  met,  answered 
and  decided  by  the  former  opinion  of  this  Court.  But  it  may  now  be 
*2261  ^^^'  enough  to  add  some  other  views  in  relation  to  *the  jurisdic- 
tion of  the  Court  over  the  case,  in  the  aspect  in  which  it  is  now 
to  be  regarded.  For  it  seems  now  to  be  conceded  that  the  paper  in 
dispute,  regarded  as  a  deed,  is  not  liable  to  any  objection  on  account  of 
its  exceeding,  at  the  time  of  its  execution,  the  proportion  of  Wheeler's 
estate,  which  by  law  he  could  convey  to  a  woman  with  whom  he  might 
be  said  to  be  then  living  in  a  state  of  adultery.  This  concession  now  re- 
moves the  ground  of  jurisdiction  on  which  the  case  was  then  rested. 

It  is  still,  however,  (even  if  it  was  an  open  question)  maintainable  on 


*226]  CHARLESTON,   MARCH,   1835.  177 

other  grounds.  The  bill  was  filed  by  the  administratrix  of  Wheeler,  to 
})revent  Meray  and  Vausse  from  carrying  the  negoes  beyond  the  jurisdic- 
tion of  the  Court.  This  she  had  the  right  to  do,  in  order  to  test  the 
question  whether  they  were  assets  liable  to  the  y)ayment  of  her  intestate's 
debts,  and  in  the  meantime  to  prevent  them  from  being,  by  the  act  of 
the  defendants,  rendered  unavailing.  At  law  she  would  have  no  remedy  ; 
for  if  the  deed  to  Sarah  A.  Evans  (now  Meray)  was  to  be  regarded,  as 
we  think  it  ought  to  be,  as  merely  voluntary,  she  could  not  as  adminis- 
tratrix, at  law  have  objected  to  it. 

But  there  is  no  doubt  tliat  the  property  was  liable  to  the  debts,  and  in 
equity  the  administratrix  might  well  be  allowed  to  take  the  necessary 
steps  to  preserve  the  property  for,  and  keep  it  within  the  reach  of  credi- 
tors. When  to  this  is  added  the  fact  that  the  creditors  might  have 
attempted  to  make  liable  the  property  settled  upon  her  at  the  time  of 
her  separation  from  her  husband,  although  it  might  not  in  fact  be  lialjle 
to  their  claims,  yet  this  vpould  be  a  good  ground  of  coming  into  equity, 
to  have  the  property  clearly  liable  to  the  payment  of  debts  applied  in 
exoneration  of  the  property  conveyed  to  her. 

The  question  of  jurisdiction  being  thus  cleared  from  all  difBcnlties,  it 
remains  to  be  considered  and  shown  (as  I  have  already  intimated)  that 
the  property  conveyed  to  Sarah  A.  Evans,  is  liable  for  the  debts  of 
the  donor,  William  Wheeler,  after  exhausting  the  assets,  real  and  per- 
sonal, of  which  he  died  possessed.  The  conveyance  to  a  trustee  for  the 
separate  use  of  Mrs.  Wheeler,  now  Mrs.  Hargrove,  was  not  only  found 
on  a  good,  but  also  a  valuable  consideration.  For  the  trustee  cove- 
nanted to  save  the  husband  harmless  against  his  wife's  debts.  This,  in 
equity,  is  regarded  as  such  a  valuable  consideration,  as  will  protect  tlie 
property  thus  conveyed  from  the  husband's  del)ts  Atherley,  in  his 
Treatise  on  *Marriage  Settlements,  p.  379,  speaking  of  settle-  r^gotr 
ments  by  way  of  separate  maintenance,  says,  "  with  respect  to  the  ^ 
validity  of  such  settlements,  as  against  the  husband's  creditors,  I  may 
observe,  that  where  the  husband  is  indemnified  against  his  wife's  debts, 
that  ^/lere  there  is  no  doubt  of  its  validity."  In  this  position  he  is  cer- 
tainly sustained  and  borne  out  by  Stephens  v.  Olive,  2  B.  C.  C.  92,  in 
which  the  Master  of  the  Rolls  (Sir  Lloyd  Kenyon)  held  that  the  cove- 
nants by  the  trustees,  in  the  second  settlement,  to  indemnify  the  husband 
against  the  debts  which  the  wife  might  contract  after  separation,  was  a 
valuable  consideration,  and  therefore  that  this  settlement,  although  made 
after  the  debt  due  to  the  plaintiff  was  contracted,  was  also  good  against 
him."  To  the  same  effect  is  the  decision  of  Mr.  Justice  Buller,  (sitting 
for  the  Lord  Chancellor,)  in  the  case  of  Compton  v.  Collinson,  2  B.  C 
C.  386 

The  case  of  St.  John  v.  St.  John,  11  Yes.  Jr.,  536,  does  not  militate 
against  this  position.  The  property  settled  on  tlie  wife,  as  her  separate 
maintenance,  Ijeing  thus  entitled  to  be  protected  against  the  debts  of  the 
husband,  it  cannot  be  made  liable  by  the  fact  that  slie  delivered  her  hus- 
band's deed  to  Sarah  A.  Evans,  to  the  mother  of  the  saitl  Sarah,  and  her 
statement  that  she  had  selected  the  negroes  for  her.  This  was  the  act 
and  statement  of  a,  feme  cover^t,  and  not  binding  on  her  after  her  dis- 
coverture. 

It  was  no  doubt  done  with  a  good  intention,  and  with   the  hope  that 


178  SOUTH   CAROLINA   EQUITY   REPORTS.  [*227 

thus  the  unfortunate  and  guilty  connection  might  terminate.  But  in  this 
expectation  she  was  deceived  by  the  act  of  the  said  Sarah,  as  well  as  her 
husband  :  she  cannot  therefore  now  be  blamed  for  insisting  on  her  legal 
rights.  The  deed  to  Sarah  A.  Evans  was  preceded  and  succeeded  by  co- 
habitation with  Wheeler  ;  it  cannot  be  considered  as  resting  on  a  valuable 
consideration.  It  might  have  been  difficult  to  sustain  it  at  all,  were  it 
objected  to  as  altogether  invalid.  In  the  case  of  Hill  v.  Spencer,  Amb. 
641,  Lord  Camden,  however,  allowed  a  bond  to  a  common  prostitute,  for 
an  annuity  of  £50  per  year,  executed  by  a  man  who  had  kept  her  two 
years,  to  stand.  He  said,  "  in  this  case  the  bond  was  not  given  for  a 
consideration,  but  teas  voluntary."  This  is,  I  think,  the  true  view  in 
which  this  conveyance  must  be  regarded.  As  a  voluntary  conveyance, 
it  is  void  against  existing  creditors,  and  being  set  aside  for  them,  subse- 
quent creditors  would  be  entitled  also  to  come  in  and  be  paid.  There  is, 
however,  another  view  which  makes  it  void  against  subsequent  creditors, 
^.TQo-i  if  there  should  *be  no  creditors  now  unpaid  who  were  such  at  the 
-■  execution  of  the  deed.  The  donor  retained  possession  during  his 
life.  This  rendered  the  conveyance  fraudulent  against  subsequent  cred- 
itors. 

This  view  of  the  case  defeats  the  marital  rights  of  Meray  to  the  prop- 
erty, for  until  the  debts  are  paid  off,  his  wife  has  no  legal  estate  in  it : 
her  righl  is  a  mere  equity  to  have  the  balance  which  may  be  left,  after 
payment  of  debts,  delivered  and  paid  to  her.  It  is  the  duty  of  the 
Court,  where  the  decree  of  the  Court  would  be  necessary,  as  it  is  in  this 
case,  to  put  the  husband  legally  in  possession  of  the  wife's  fortune  to 
decree  a  settlement. 

It  is  ordered  and  decreed  that  the  defendants  do  deliver  the  property 
conveyed  to  Sai*ah  A.  Evans,  (now  Meray,)  by  Wm.  Wheeler,  with  the 
issue  and  increase  thereof,  if  any,  to  the  Commissioner  of  this  Court,  and 
that  he  do  sell  the  same,  on  a  credit  of  twelve  months  ;  that  out  of  the 
proceeds  he  do  pay  such  debts  of  William  Wheeler  as  may  remain  un- 
paid, after  exhausting  the  other  assets  of  the  deceased,  and  the  costs  of 
this  suit,  and  that  he  do  report  the  terms  and  trust  of  a  settlement  to  be 
made  of  tlie  balance  of  the  said  proceeds  on  the  said  Sarah  A.  Evans. 
It  is  also  ordered  and  decreed  that  the  Commissioner  do  advertise  for  the 
creditors  of  William  Wheeler,  to  render  in  to  him  their  demands  within 
twelve  months,  and  that  he  take  an  account  of  the  assets  of  the  intestate 
in  the  hands  of  the  plaintiff. 

Johnson,  J.,  and  Harper,  J.,  concurred. 


John  B  Barnwell,  and  otliers,  v.  Robert  W.  Barnwell,  Executor  of 
Wm,  Hutson  Wigg,  and  Wm.  Hazzard  Wigg. 

When  a  trustee  does  an  act  importing  a  termination  of  the  trust,  as  a  final  settle- 
ment, the  statute  of  limitations  will  run  from  that  time  but  a  payment  to  the 
father  of  the  cestui  que  trusts  who  had  no  authority  to  receive,  is  not  to  be  regarded 
as  such  a  termination  of  the  trust  as  will  allow  the  statute  to  run  from  that  time. 
[*2o2] 

Lapse  of  twenty  years  will  raise  the  presumption  of  the  payment  of  a  legacy.  [*233] 


*228] 


CHARLESTON,  MARCH,  1835.  179 


A  lapse  of  nineteen  years  after  one  of  the  legatees  coming  of  age,  will  create  such 
presumption  against  him,  wiicre  the  legacy  liad  been  paid  thirty-tive  years  before 
to  his  father,  and  the  executor  was  dead  and  his  estate  administereil  and  disposed 
of  l*2?A] 

Tried  before  Chancellor  De  Saussure,  at  Coosawatchie,  April,   1834. 

"William  Hazzard  Wigg,  by  his  will,  dated  day  of  ,  1798,  after 
giving  several  pecuniary  legacies  to  his  widow  and  brothers,  and  par- 
ticularly a  legacy  of  £150  to  his  brother,  James  Cuthbert,  bequeathed  to 
the  children  of  his  sister,  Jane  Hay  Barnwell,  the  sura  of  £1U0;  and 
directed  that  the  aforesaid  legacies  should  be  paid  only  when  his  executor 
"  could  make  it  *convenient  to  his  estate,  and  that  until  they  were  r^^ggo 
paid,  interest  from  his  death  should  not  be  allowed  on  them  ;  and  i  ~  "^ 
that  after  his  debts  and  legacies  were  paid,  his  estate  should  be  kept  to- 
gether for  five  years,  commencing  from  the  last  payment  of  his  debts  and 
legacies,  and  the  crops  in  the  meantime  be  divided  between  his  son, 
William  Hutson  Wigg,  and  his  sons-in-law."  The  testator,  after  pro- 
viding for  his  daughter,  gave  at  the  expiration  of  the  aforesaid  five  ycai's, 
all  the  rest  and  residue  of  his  estate,  real  and  personal,  to  his  son,  AVil- 
liam  Hutson  Wigg,  with  a  limitation  over,  in  case  of  his  death  before 
twenty-one  years,  and  without  leaving  issue  ;  and  appointed  him  execu- 
tor. William  Hutson  Wigg  qualified,  and  acted  under  the  will,  and  in 
the  year  1822,  upon  a  suit  being  brought  against  him,  paid  without  op- 
position or  objection,  to  the  representatives  of  James  H.  Cuthbert,  the 
legacy  of  £150  and  interest  from  the  day  of  ,  1803.  He  died  in 
the  year  1827,  possessed  of  the  mass  of  his  father's  estate,  and  by  his 
will  merely  appointed  Robert  W.  Barnwell,  the  defendant,  his  executor, 
but  made  no  disposition  of  his  property,  which  descended,  and  is  now  in 
the  possession  of  his  only  son  and  heir,  William  Hazzard  Wigg,  the 
other  defendant.  At  the  death  of  the  testator,  William  Hazzard  Wigg, 
his  sister,  Jane  Hay  Barnwell,  was  the  wife  of  John  B.  Barnwell,  senior, 
and  her  children  w^ere  John  B.  Barnwell,  junior,  aged  then  about  twenty 
years,  Jane  Barnwell  aged  eleven  years,  Edward  W.  Barnwell  aged  nine 
years,  and  Cuthbert  Barnwell,  aged  three  years,  Jane  Barnwell  died  in 
the  year  1817,  a,  feme  covert. 

This  suit  is  brought  by  her  representatives,  and  the  surviving  children 
of  Jane  Hay  Barnwell,  who  allege  that  they  were  entirely  ignorant  of 
their  uncle's  will,  and  only  discovered  by  accident  recently  that  a  legacy 
was  thereby  bequeathed  to  them. 

The  bill  is  for  an  account  of  the  administration  of  the  estate  of  Wil- 
liam Hazzard  Wigg,  and  to  compel  payment  of  the  aforesaid  legacy  from 
the  assets. 

The  executor  denies  by  his  answer  ever  having  had  notice  of  this 
claim  ;  on  the  contrary  says,  that  shortly  after  assuming  the  execution  of 
the  will  of  William  Hutson  Wigg,  he  advertised  according  to  law,  for 
all  the  creditors  of  the  estate  of  his  testator  to  present  their  demands ; 
and  after  having  applied  the  proceeds  of  the  estate  to  the  payment  of  the 
debts,  in  about  April,  1830,  ^delivered  possession  to  William  r*c)oA 
Hazzard  Wigg,  and  relinquished  all  control  over  the  property.  •- 
That  so  long  a  period  has  elapsed  since  the  death  of  the  testator  of  his 
testator,  William  Hazzard  Wigg,  and  so  entirely  has  his  estate  been 
merged  in  the  estate  of  William  Hutson  Wigg,  that  he  had   never  seen 


180  SOUTH   CAROLINA    EQUITY    REPORTS.  [*230 

or  read  the  will  of  William  Hazzard  Wigg  until  the  bringing  of  this 
suit :  that  if  the  plaintiffs  have  any  cause  of  complaint  against  him,  as 
executor  of  William  Hutson  Wigg,  the  same  did  accrue  above  four  years 
before  the  commencement  of  this  suit,  and  therefore,  being  a  demand 
within  the  true  reason  of  the  Act  of  Assembly  made  for  the  limitation  of 
actions  and  avoiding  suits,  should  have  been  pursued,  if  at  all,  within 
that  time.  That  from  the  copies  of  certain  papers  in  his  testator's  hand- 
writing, and  other  memoranda  found  in  his  possession,  and  which  are 
brought  into  Court,  as  exhibits,  he  believes  firmly,  that  the  legacy  was 
paid  to  the  father  of  the  jiittiniiff,  who  was  then,  at  the  time  of  Jiis 
death,  possessed  of  a  large  estate,  real  and  2:)ersonal,  which  was  after- 
wards distributed  among  his  children :  that  the  lapse  of  time,  together 
with  the  presumption  of  payment  from  the  above  facts,  ought  to  bar  the 
plaintiffs,  and  that  from  the  intimacy  which  existed  for  many  years  be- 
tween the  plaintiffs  and  his  testator,  William  Hutson  Wigg,  and  from 
the  pecuniary  circumstances  of  the  plaintiffs,  a  demand  for  the  payment 
of  the  legacy  would  long  since  have  been  made,  had  not  the  plaintiffs 
been  convinced  that  the  same  was  satisfied  ;  and  that  their  laches  ought 
to  preclude  them  from  all  claim  to  the  aid  of  the  Court. 

The  other  defendant,  William  Hutson  Wigg,  answers  to  the  same 
effect,  and  in  nearly  the  same  words.  The  exhibit  filed  with  the  bill,  as 
a  copy  of  the  will,  was  admitted  to  be  a  correct  copy,  and  the  plaintiffs, 
to  be  the  children  of  Jane  H.  Barnwell ;  their  ages  were  also  admitted 
as  above  stated,  and  the  bill  and  orders,  in  the  case  of  Mrs.  Ann  Cuth- 
bert,  administratrix  of  James  H.  Cuthbert  v.  William  Hutson  Wigg, 
executor,  were  produced  as  evidence.  It  was  also  admitted  for  the  de- 
fendants that  the  plaintiffs  have  been  for  a  long  time  in  very  necessitous 
circumstances.  The  exhibit,  filed  with  the  answer,  as  proved  to  have 
been  taken  out  of  the  family  Bible  of  the  Wigg  family,  is  in  the  following 
words,  viz  : — "  Made  the  following  settlement  this  day  with  Mr.  W.  H. 
Wigg.  He  receipts  all  claims  against  me  in  favor  of  his  father's  estate ; 
5^cjo-|^-i  also  on  an  order  given  him  by  D.  Smith  on  me.     *I  gave  him  a 

final  discharge  on  a  legacy  left  my  children  in  his  father's  will, 
which  I  acknowledge  for  them  to  have  received  this  day,  1st  December, 
1799." 

(Signed)  John  B.  Barnwell, 

William  H.  Wigg. 
Witnessed  by  Benjamin  Wood. 

The  Chancellor  decided  against  the  claim  of  the  plaintiffs,  and  ordered 

the  bill  to  be  dismissed,  but  without  costs. 

From  this  decree  the  plaintiffs  appeal  upon  the  following  grounds: — 
1.  Because  there  is  sufficient  in  the  evidence,  answers,  and  language  of 

the  will  of  the  testator,  William  H.  Wigg,  to  repel  the  presumption  of 

payment  to  the  plaintiff,  and  the  payment  to  the  father  of  the  plaintiffs 

cannot  be  sustained  on  any  principle  of  law  or  equity. 

TreviUe,  for  the  appellants,  contended  that  presumption  of  payment 
arising  from  lapse  of  time,  may  be  repelled,  there  being  a  distinction 
between  such  presumption  and  the  statute  of  limitations.— 6  Barn,  and 
Cres.  603.  The  one  is  an  absolute  and  unqualified  legal  bar,  the  other 
a  legal  presumption  from  a  fact.— Blanch,  on  Lim.  79.     The  ignorance 


*231]  CHARLESTON,  MARCH,  1835.  181 

of  the  legatees  of  the  legacy  to  them,  repels  the  presamptioa  of  payment. 
—  I  Fonb.  181;  Ord  v.  Smith,  Sel.  Cha.  Ca.  11.  The  executor  is  en- 
trusted with  the  execution  of  the  will ;  it  was  his  duty  to  give  notice  to 
the  legatees  He  is  not  bound  to  prove  the  will. — Toll.  44-5.  And  if  this 
presumption  is  to  exist  in  all  cases,  he  might  conceal  the  will  when  he  is 
the  residuary  legatee,  (as  is  the  case  here,)  and  thus  acquire  gain  to  him- 
self by  defeating  every  other  legacy.  In  no  case  will  presumption  of  the 
payment  of  a  legacy  arise  under  twenty  years. — 2  Ves.  Jr.  SVl.  It  can- 
not arise  until  the  legatees  are  of  full  age,  and  entitled  to  receive ;  and 
the  minority  of  the  plaintiffs  prevent  it  from  arising  against  them,  the 
youngest  not  having  attained  full  age  twenty  years  before  the  filing  of  the 
bill.  If,  however,  such  presumption  does  arise,  the  circumstances,  he 
insisted,  repelled  it,  to  wit:  the  minority  of  the  plaintiffs  ;  their  ignorance 
of  the  legacy  ;  the  admission  of  both  the  defendants  that  they  have  not 
paid  it;  the  fact  that  Cuthbert's  legacy  was  not  paid  till  suit  brought  in 
1822  ;  and,  above  all,  the  showing  of  the  defendants  that  payment  was 
made  to  the  father  of  the  plaintiffs,  who  was  not  *authorized  to  r^oqo 
receive  ;  and  the  inference  is  irresistible  that  the  executor  did  not,  '- 
before  or  after  that  time,  pay  the  legatees. 

BaileAj,  contra.  In  Moore  t'.  Porcher  (Charleston  MS.  cases)  it  was 
held,  that  when  an  act  is  done  purporting  to  be  in  discharge  of  the  trust, 
the  statute  of  limitations  begin  to  run.  The  payment  to  the  plaintiffs' 
father,  whether  authorized  or  not,  was  so  intended,  and  from  that  time 
the  statute  runs.  In  any  event,  lapse  of  time  must  be  a  bar  upon  the 
presumption  of  payment.  Thirty  five  years  have  elapsed  since  the  plain- 
tiffs were  entitled  to  demand  payment,  and  since  it  was  made  to  their 
father.  After  such  lapse  of  time,  the  Court  will  presume  that  the  father 
had  authority  to  receive,  as  guardian  or  otherwise — everything  will  be 
presumed  in  favor  of  the  defendants  ;  and  when  there  are  other  circum- 
stances, less  time  than  twenty  years  will  create  such  presumption.  He 
cited  1  Black.  Com.  461,  462;  2  Atk.  371;  Toller.  313;  1  Bail.  59; 
Rop.  on  Leg.  609;  2  Ves.  Jr.  11. 

Johnson,  J.  It  is  conceded  that  the  statute  of  limitations  will  not 
bar  a  legacy,  and  such  clearly  is  the  general  rule.  But  it  appears  from 
the  evidence  that  the  legacy  claimed  by  the  plaintiffs  under  the  will  of 
their  grandfather,  William  H.  Wigg,  was  paid  by  his  executor  to  their 
father,  John  B.  Barnwell,  as  long  ago  as  1799,  and  it  is  insisted  that  this 
was  professedly  intended  as  a  payment  of  the  legacy,  and  an  execution  of 
the  trust  imposed  by  law,  and  that  therefore  the  statute  would  begin  to 
run  from  that  time.  The  cases  of  Starke  &  Starke,  published  in  the 
Carolina  Law  Journal,  p.  510,  and  Moore  t'.  The  Administrator  of 
Porcher,  decided  at  this  place,  I  think  at  February  Term,  1830,  are 
relied  on  in  support  of  this  position.  The  principle  is  certainly  a  correct 
on«,  that  when  an  executor  or  other  person,  acting  in  a  fiduciary  charac- 
ter, does  an  act  importing  a  termination  of  the  confidence  or  trust,  as  a 
final  settlement  and  account  with  the  legatee  or  cestui  que  trust,  he  will  be 
protected  by  the  statute  against  a  subsequent  account,  unless  he  has  been 
guilty  of  fraud,  and  even  then  the  statute  will  run  from  the  discovery  of 
the  fraud.  But  this  case  does  not  fall  within  that  rule.  The  trust  re- 
VoL.  I.— 35 


182  SOUTH    CAROLINA   EQUITY    REPORTS.  [*232 

posed  in  the  executor  was  that  he  would  pay  the  legacy  to  the  plaintiffs, 
or,  being  minors,  to  some  one  who  might  be  duly  authorized  to  receive. 
In  law,  the  father  was  not,  as  a  general  rule,  entitled  to  receive  it,  and 
the  payment  to  him  can  no  more  be  regarded  as  a  fulfilment  and 
*termination  of  the  trust,  than  if  he  had  paid  it  to  a  stranger. 
'"  -^  On  the  contrary  it  was  in  direct  violation  of  it.  The  rule  sup- 
poses that  the  legatee  or  cestui  que  trust  has  at  least  notice  that  the 
executor  or  trustee  regards  himself  as  having  been  discharged  of  the 
trust,  and  maintains  that  they  are  bound  to  insist  on  their  rights 
within  the  period  limited  by  the  statute,  but  it  cannot  be  supposed  that 
they  would  be  bound  by  an  account  with,  or  notice  to  a  stranger. 

No  case  has  been  cited  at  the  bar  to  show  that  the  payment  of  a 
legacy  will   be   presumed   after   a  lapse   of  twenty  years,  nor  does  my 
memory  supply  me  with  any  particular  case  in  which  it  has  been  ruled; 
yet  the  impression  on  my  mind  that  the  precise  point  has  been  rule(3  is  so 
strong,  that  I  can  hardly  be  mistaken,  and  I  think  that  upon  referring  to 
the  unreported  cases,  more  than  one  of  the  sort  will  be  found.     However 
that  may  be,  the  universal  tendency  of  our  own  decisions  has  been  to  cut 
down  the  time  necessary  to  the  legal  presumption   of  facts  from  that 
established  in  the  English  Courts.     The  difference  in  the  time  necessary 
to  bar  an  ejectment  in  England  and  in  this  State,  as  well  as  personal 
actions,  laid  the  foundation  for  this  diversity  of  rule,  and  has  been  made 
the  foundation  of  a  new  rule.     On  this  principle  it  was  held  in  M'Elwee 
V.  Hill,  2  Cons.  Rep.  130,  that  a  possession  of  twenty  years  was  sufficient 
to  authorize  the  presumption  of  a  grant  to  land,  thirty  years  being  re- 
quired according  to  the  English  rule  ;  and  still  more  strikingly  analogous 
is  the  case  of  Wright  v.  Wright,  2  M'C.  Ch.  Rep.  197,  where  upon  a 
bill  filed  against  an  executor  for  an  account,  it  appeared  that  sixteen 
years  before  the  executor  had  rendered  an  ex  parte  account  to  the  ordi- 
nary, the  accounts  appearing  regular,  it  was  held  that  this  was  a  protec- 
tection  against  a  further  accounting.     There  is  perhaps  no  case  in  which 
such  a  protection  is  more  necessary  than   in  the  cases  of  executors  and 
administrators.     Their  duty  is  not  limited  to  a  particular  transaction, 
which,  from  its  magnitude  and  importance,  would  point  out  the  propriety 
of  preserving  the  evidence  of  it,  but  of  those  various,  minute,  and  compli- 
cated details,  each  being  of  itself  comparatively  unimportant,  and  there- 
fore the  more  likely  to  be  neglected.     Twenty  years  gives  abundant  time 
to  settle  the  affairs  of  the  most  deranged  and  complicated  estate,  and  the 
restless  and  migratory  habits  of  our  people,  by  which   means   proof  per 
testes  is  every  day  rendered  more   difficult  of  attainment,   is,  I  think, 
^^no i-1  abundant  reason  for  *cutting  down  the  time  to  as  short  a  time  as 
may  be  consistent  with  sound  policy.     I  take  it  therefore  that 
twenty  years  is  per  se  sufficient  to  authorize  the  presumption  of  the  pay- 
ment of  a  legacy.     Starkie,  in  his  Treatise  on  Evidence,  p.  1235-6,  says, 
that  this  presumption  is  founded  on  an  artificial  rule,  by  which  we  arrive 
at  a  conclusion  without  the  process  of  reasoning,  and  supplies  the  place 
of  proof.     There  is  also  a  natural  presumption  arising  from  lapse  of  time 
independently  of  the  artificial  rule,  and  although  it  does  not  necessarily 
lead  to   a  conclusion,  yet   in   weighing   other   circumstances,  it  enters 
largely  into  the  account.     "  It  is  hard  to  prove  old  things,  and  therefore 


*234]  CHARLESTON,  MARCH,  1835.  183 

less  proof  will  be  required."   Onr  confidence  in  history,  and  even  Revela- 
tion, is  in  some  degree  built  on  this  foundation. 

About  thirty-five  years  had  elapsed  between  the  death  'of  the  testator 
and  the  filing  of  the  bill ;   and  although  the  presumption   of  payment  of 
the  legacy  to  the  plaintiffs   during  their  minority,  would  not  arise  on 
account  of  their  incompetency  to  receive,  yet  it  does  not  follow  that  there 
was  not  some  one  duly  authorized  to  receive  it  for  them,  and  it  may  be 
well  conceded  that  this  length  of  time  would  greatly  increase  the  diffi- 
culty of  furnishing  strict  proof     More  than  twenty  years  had  elapsed 
between  the  period  at  which  some  of  the  plaintiffs  attained  full  age,  and 
the  filing  of  the  bill,  and  with  respect  to  them  the  legal  presumption  must 
operate.     The  legacy,  although  of  a  gross  sum,  was  equally  distributable 
amongst   them,  each   was  entitled  to  receive  his  own  dividend  on  his 
attaining  his  majority,  and  the  non-payment  of  one  would  not  authorize 
the  presumption  that  the  other  was  not  paid.     Cuthbert  Barnwell,  the 
youngest  of  the  plaintiffs,  attained  full  age  about  nineteen  years  before 
the  filing  of  the  bill,  and  although  in  his  case  the  artificial  rule  will  not 
operate,  yet  considering  the  great  length  of  time  since  the  death  of  the 
testator,  his  neglect  to  prosecute  his  claim  on  his  attaining  full  age,  and 
taking  it  in  connection  with  the  circumstances  summed  up  by  the  Chan- 
cellor, well  waiTants  the  conclusion  at  which  he  has  arrived.     More  than 
the  third  of  a  century  had  elapsed,  all  the  other  concerns  of  the  estate  of 
the  testator  had  been  finally  settled,  the  executor  was  dead,  and  his 
estate  fully  administered  and  disposed  of  accordingly,  and  plenary  proof 
was  not  to  be  expected.     The  payment  of  the  legacy  to  the  plaintiffs' 
father  by  the  executor,  in  IT 99,  is  relied  on  as  repelling  the  presumption 
of  payment  to  the  plaintiffs  :  but  if  there  is  anything*  in  it,  it  r^goc 
leads  to  a  directly  opposite  conclusion.     Men  do  not  ordinarily  ^ 
and  voluntarily  incur  the  responsibility  of  paying  money  on  the  one  hand, 
or  receiving  it  on  the  other,  without  authority  ;  and  in  this  case  we  have 
but  to  call  in  the  aid  of  the  legal  presumption,  to  arrive  at  the  conclusion 
that  the  father  was  legally  authorized  to  receive  the  legacy.     Again,  let 
it  be  conceded  that  the  payment  was  without  the  authority  of  law: — It 
was  then  a  trust  reposed  by  the  executor  in  the  father,  to  administer  it 
for  the  benefit  of  the  plaintiffs.     Who  was  so  much  interested  or  so  likely 
to  employ  it  in  the  way  best  calculated  to  promote  their  interest  ?     It  is 
a  slander  on  parents  to  suppose  that  they  are  indifferent  to,  or  careless 
of,  the  interest  of  their  children.     Some  are,  but  they  are  exceptions  to 
the  general  rule.     Is  there  not,  then,  independent  of  a  legal  presumption, 
much  reason  to  believe  that  the  father  has  discharged  this  trust  faith- 
fully, and  that  if  he  were  now  living,  he  would  be  able  to  show  it  satis- 
factorily ?     I  have  not  adverted  to  the  fact  stated  in  the  Circuit  Court 
decree,  that  the  plaintiffs  have  derived  a  considerable  estate  from  their 
father,  because  I  understand  that  it  was  made  on  a  concession  by  the 
counsel  on  the  trial  below  which  he  has  since  ascertained  was. not  war- 
ranted by  the  fact.     If  that  was  so,  the  plaintiffs  would  be  unquestional)ly 
liable  to  account  to  the  defendant  for  the  legacy  received  by  their  father, 
upon  precisely  the  same  principle  that  they  seek  to  charge  him;  but  from 
the  view  before  taken  that  matter  has  l)ecome  unimportant. 

Motion  dismissed,  and  the  decree  of  the  Circuit  Court  is  affirmed.    . 

O'Neall,  J.,  and  Harper,  J.,  concurred. 


184  SOUTH    CAROLINA    EQUITY    REPORTS.  [*235 


Joseph  W.  Allston  and  John  H.  Allston,  v.  The  Bank  of  the  State 
OF  South  Carolina. 

Settlement  on  husband  and  wife,  to  their  joint  use  during  coverture,  and  to  the 
survivor;  and  power  given  to  the  trustee  to  sell  and  invest  the  proceeds,  suWect 
to  the  same  trusts:  the  trustee  sold,  and  the  husband  afterwards  by  deed,  assigned 
his  interest  in  the  proceeds,  to  the  trustee,  giving  him  authority  to  reinvest  for 
the  benefit  of  his  wife,  in  such  way  as  she  might  direct;  and  the  trustee  accord- 
ingly reinvested  to  the  sole  and  separate  use  of  the  wife  during  life,  and  if  she 
died  without  leaving  issue,  then  to  the  husband: — Held,  that  the  husband  had 
the  right  to  change  the  terms  of  the  trust;  and  that  the  rights  of  creditors  must 
be  determined  by  the  interest  he  took  in  the  property  last  acquired.  [*239] 

A  contingent  remainder  is  not  subject  to  the  lien  of  a  judgment;  but  an  assignment 
of  it  for  a  valuable  consideration  will  be  supported  in  equity  and  specifically 
enforced,  as  an  agreement:  therefore  where  the  remainder  man  against  whom 
there  were  judgments  before  the  contingency  on  which  betook  happened,  assigned 
his  interest,  it  was  held,  that  the  lien  of  the  judgments  must  be  subject  to  the 
equity  of  the  assignment.  [*242] 

John  Adamson,  the  father  of  Amelia  Delesseline,  wife  of  Francis  A. 
Delesseline,  by  his  last  will  and  testament,  devised  to  his  said  daughter, 
^g„„-,  amongst  other  things,  certain  lots  in  the  town  of  *Camden,  in  fee 
"^  -'  simple  ;  and  on  the  25th  July,  1816,  after  the  death  of  the  testa- 
tor, the  said  Francis  A.  Delesseline,  and  his  said  wife,  joined  in  a  con- 
veyance of  the  said  lots,  to  Lewis  Ciples,  but  upon  what  consideration 
does  not  appear,  nor  is  it  material  to  the  case.  On  the  11th  May,  181t, 
the  said  Lewis  Ciples,  by  deed,  reciting  the  conveyance  above  referred  to, 
in  consideration  of  five  dollars,  and  in  pursuance  of  the  intention  of  the 
parties  to  the  said  deed,  conveyed  the  said  lots  to  Francis  G.  Delesseline, 
father  of  the  said  Francis  A.  Delesseline,  in  trust  for  the  joint  use  and 
benefit  of  the  said  Francis  A.  Delesseline  and  his  said  wife,  during  their 
coverture,  and  from  and  immediately  after  the  decease  of  either  of  them, 
to  the  survivor,  forever  ;  and  authority  is  thereby  given  to  the  said  trustee, 
with  the  consent  of  the  said  Francis  A.  Delesseline,  and  his  said  wife,  to 
sell  and  dispose  of  the  said  premises,  and  to  re-invest  the  proceeds  in  such 
property  as  they  should  direct,  "  which  shall  be  subject,  in  the  hands  of 
the  said  Francis  G  Delesseline,  to  the  same  trusts,  conditions  and  limita- 
tions, which  are  declared  of  and  concerning  the  premises  hereby  conveyed." 
In  December,  1827,  the  trustee,  with  the  consent  of  the  said  Francis  A. 
Delesseline,  and  his  said  wife,  sold  and  conveyed  the  premises  to  Eliza- 
beth Rogers,  in  consideration  of  the  sum  of  $5000. 

Francis  G.  Delesseline  afterwards,  on  an  application  to  the  Court  of 
Chancery,  was  permitted  to  resign  his  trust,  and  by  an  order  of  the  Court, 
John  G.  Spidle,  was  substituted  in  his  stead  ;  and  on  the  2d  July,  1830, 
the  said  Francis  A.  Delesseline,  by  deed,  assigned  to  the  said  John  G. 
Spidle,  the  trustee,  all  his  interest  in  the  sum  of  $4000,  part  of  the  pro- 
ceeds of  the  sales,  to  Elizabeth  Rogers,  then  standing  to  the  credit  of  the 
said  trustee,  in  the  Planters'  &  Mechanics'  Bank,  in  trust  for  the  sole 
and  separate  use  of  his  said  wife,  without  being  subject  to  his  debts  o^ 
disposition,  with  power  to  invest  the  same,  and  the  income  or  interest 
arising  therefrom,  "  in  such  property,  and  with  such  limitations,  and  to 
such  uses,"  as  his  said  wife  might  direct  and  appoint.  In  pursuance  of 
this  authority,  Spidle,  the  trustee,  invested  the  fund  in  a  house  and  lot, 


*236]  CHARLESTON,  MARCH,  1835.  185 

in  Wentvvorth  street,  Charleston,  and  Mr.  Millikcn,  from  whom  he  ]inr- 
chased,  conveyed  the  same  to  him  by  deed,  bearino;  date  filh  July,  1S3U, 
wherein  it  is  declared  to  be,  in  trust,  for  the  sole  and  separate  use  of  the 
said  Amelia,  during  her  natural  life,  without  being  subject  to  *the  r^^p.;.- 
debts  of  her  husband,  and  at  her  death,  for  her  issue,  if  any ;  but  L  ""^' 
if  she  died  before  her  husband,  without  leaving  issue,  in  trust  for  hor 
husband,  the  said  Francis  A.  Delesseline,  in  fee  In  1831,  the  phiintiffs 
indorsed  a  note  for  $500,  for  the  accommodation  of  Francis  A.  Delesse- 
line, which  was  discounted  at  the  Branch  Bank  at  Georgetown,  and  in 
consequence  of  his  insolvency,  the  payment  has  devolved  on  the  plaintiffs. 
To  indemnify  them  against  this  liability,  the  said  Francis  A.  Delesseline, 
on  the  20th  June,  1832  (his  wife  then  being  alive,)  by  deed  assigned, 
amongst  other  things,  all  the  right,  title  and  interest,  which  he  then  had, 
or  might  thereafter  have,  in  the  house  and  lot  in  Wentworth  street,  above 
referred  to  ;  and  Amelia  Delesseline,  the  wife,  died  shortly  after,  without 
issue. 

Between  the  year  1823  and  the  21st  April,  1828,  sundry  judgments  had 
been  obtained  and  entered  up  against  Francis  A.  Delesseline,  in  Charleston 
district,  and  on  the  day  last  mentioned,  the  defendant,  the  Bank,  ol)tained 
and  entered  up  judgment  against  him  for  $5050  ;  and  the  estate  limited 
over  to  Francis  G.  Delesseline,  by  the  deed  of  Mr,  Milliken  to  John  G. 
Spidle,  the  trustee,  having  become  vested  in  the  said  Francis  A.  Delesse- 
line, on  the  death  of  his  wife  without  issue,  executions  founded  on  the 
judgments  before  mentioned,  w^ere  levied  on  the  house  and  lot  in  Went- 
worth street,  which  was  sold  on  the  5th  of  November,  1832,  and  purchased 
by  the  Bank  for  $3200  ;  notice  of  the  assignment  of  Francis  A.  Delesse- 
line, to  the  plaintiffs,  having  been  given  at  the  time  of  the  sale.  Of  this 
sum,  it  appears  that  about  $800  were  applied  to  the  payment  of  older 
judgments,  and  the  remainder  to  the  judgment  of  the  Bank. 

The  object  of  the  bill  is  to  charge  the  house  and  lot  in  Wentworth 
street,  or  the  funds  arising  from  the  sales  thereof  in  the  hands  of  the 
Bank,  with  the  note  indorsed  by  the  plaintiff's  for  the  said  Francis  A. 
Delesseline.  The  judgments  against  Delesseline,  which  have  been  paid 
off  by  the  proceeds  of  the  sheriff's  sales,  being  older  than  the  judgment 
of  the  Bank,  were  necessarily  entitled  to  priority,  and  the  remainder  not 
being  sufficient  to  pay  both  the  Bank  judgments  and  the  note  indorsed  by 
the  plaintiffs,  and  to  secure  which  Delesseline  assigned  to  them  his  interest 
in  this  property,  the  question  is,  which  of  them  is  entitled  to  the  prece- 
dence ?  The  Chancellor  (De  Saussure)  being  with  tlie  *defendant  r*238 
on  this  question,  dismissed  the  plaintiff's  bill,  and  this  is  an  appeal 
from  that  decision,  on  the  following  grounds  : 

1.  That  the  Camden  estate  being  vested  in  Mrs.  E.  Rogers  prior  to 
the  Bank's  judgment,  no  lien  attached  thereon  ;  and  the  Bank  has  no 
equitable. claim  to  subject  the  property  in  Wentworth  street  to  the  same 
uses. 
^2.  That  the  interest  of  Francis  A.  Delesseline  in  the  Wentworth  street 
property  anterior  to  the  death  of  his  wife,  was  not  subject  to  the  lien  of 
a  judgment;  and  was  well  mortgaged  or  assigned  to  the  AUstons,  to 
indemnify  them  for  their  responsibility  ;  and  the  decree  should  have  either 
directed  the  notes  to  be  paid,  or  have  ordered  a  foreclosure  for  that 
purpose. 


186  SOUTH   CAROLINA   EQUITY   REPORTS.  [*238 

Dunkin,  for  the  appellants.  The  sale  of  the  Camden  property  was 
before  the  Bank  obtained  judgment ;  no  lien,  therefore,  attached  to  that. 
It  is  true,  that  the  original  trust  deed  required  that  the  proceeds  of  the 
property,  if  sold,  should  be  to  the  same  uses;  and  that  the  terms  of  the 
trust  are  clianged  ))y  the  deed  of  the  Wentworth  street  property.  But 
who  has  the  right  to  complain  ?  not  the  Bank  ;  it  had  no  interest  then — 
no  one  but  Delesseline,  the  cestui  que  trust;  and  there  can  be  no  just 
reason  why  a  party,  for  whose  benefit  a  trust  is  created,  may  not  waive  or 
dispose  of  it. 

Before  the  death  of  his  wife,  Delesseline's  interest  in  the  Wentworth 
street  property  was  a  contingent  use,  subject  to  the  same  rules  which 
govern  contingent  remainders,  and  was  not  the  subject  of  levy. — 4  Kent 
Com.  293  ;  Prest.  301  ;  Fearne  365-6.  Levy  can  only  be  made  on  a 
certain,  vested,  and  tangible  interest,  of  which  the  sheriff  can  put  the 
purchaser  in  possession  ;  choses  in  action,  claims  purely  equitable,  and 
contingent  interests,  not  partaking  of  this  character,  are  not  the  subject 
of  levy  and  sale. — 1  Black.  Rep.  30  Doe  v.  Jones;  4  Cora.  Dig.  35, 
Tit.  Estate  ;  Harrison  v.  Maxwell,  2  N.  &  M'C.  350  ;  Rabb  v.  Akin, 
2  M'C.  Ch.  125-6;  1  John.  Ch.  Rep.  52;  H  John.  Rep.  350;  1  Pet. 
442 ;  1  Bail.  237  ;  8  East.  484.  Although  the  interest  of  Delesseline 
was  not  subject  to  the  lien  of  the  judgment,  it  was  assignable  by  him,  and 
the  assignment  or  mortgage  will  be  sustained  and  enforced  in  equity  as 
an  agreement.     Fearne,  550  ;  Wright  v   Wright,  1  Yes.  jr.  409. 

^t-,qni  *^-  ^-  Smith,  contra — Contended  that  the  deed  for  the  Went- 
-■  worth  street  property,  varying  in  its  terms  the  original  trust,  was 
fraudulent  as  against  creditors  ;  and  that  the  interest  of  Delesseline,  being 
a  mere  possibility,  was  not  the  subject  of  assignment.  Cited  8  T.  R.  88  ; 
1  H.  Black.  30;  Eq.  Ca.  30;  4  Cora.  538;  1  Prest.  on  Estates,  Y5  ;  2 
Vern.  563.  As  to  the  right  of  levy ;  1  Yates,  427  ;  2  Bin.  80,  89  ;  8  Mass. 
Rep.  551. 

Dunkin,  in  reply  :  A  possibility  cannot  be  assigned  at  law,  but  it  may 
pass  by  way  of  agreement  in  equity. 

Johnson,  J.  (After  making  the  foregoing  statement.)  There  is  no  doubt, 
that  under  the  deed  from  Lewis  Ciples  to  Francis  C  Delesseline,  of  the 
17th  May,  1817,  Francis  A.  Delesseline  had  a  vested  interest  in  the 
Camden  property,  to  the  extent  of  one  half  for  life,  with  a  remainder  in 
fee  of  the  whole  upon  the  death  of  his  wife  without  issue  ;  and  it  seeraed 
to  be  conceded  on  the  argument,  that  the  lien  of  the  judgments  due  the 
Bank  would  have  attached  at  least  on  his  interest  for  life  :  and  the  power 
given  to  the  trustee  by  that  deed,  to  sell  and  dispose  of  that  property, 
being  limited  to  a  re-investment  of  the  proceeds  in  other  property,  to  the 
"  same  trusts  and  conditions,  and  limitations"  as  are  expressed  in  that 
deed,  the  Chancellor  held,  that  Francis  A.  Delesseline  had  no  autho- 
rity to  direct  the  investments  of  it  to  other  uses,  or  upon  other  condi- 
tions and  limitations,  and  therefore  directed  that  the  trusts  declared  in 
the  deed  from  Mr.  Milliken  to  John  G.  Spidle,  the  trustee  for  the  house 
and  lot  in  Wentworth  street  should  be  reformed  in  such  a  manner  as  to 
correspond  with  those  on  the  deed  from  Lewis  Ciples  to  Francis  G.  De- 
lesseline ;  and  the  foundation  of  the  Circuit  Court  decree  is,  that  the 


*2o9]  CHARLESTON,    MARCH,    1835.  187 

deed  thus  reformed  would  give  to  Francis  A.  Delesscliiie  an  interest  or 
estate  in  the  house  and  lot  in  Wentworth  street,  on  which  the  lien  of  the 
judgment  of  the  Bank  would  attach,  and  that  being  older  than  the  assign- 
ment to  the  plaintiffs,  was  entitled  to  the  priority.  As  before  remarked, 
the  interest  which  Francis  A.  Delesseline  took  in  the  Camden  pro[)erty, 
under  the  deed  from  Lewis  Ciples  to  Francis  G.  Delesseline,  was  one 
half  for  the  joint  lives  of  himself  and  his  wife,  with  a  remainder  in  fee  of 
the  whole,  upon  the  contingency  of  the  wife's  dying  before  him  witliout 
issue.  This,  by  the  sale  to  Elizabeth  Rogers,  was  converted  into  money, 
and  as  between  Francis  A.  Delesseline,  and  his  wife,  and  their  trustee,  I 
cannot  conceive  of  any  possible  legal  obstruction  to  his  making  any  dispo- 
sition* of  his  interest  in  it  that  he  might  think  proper,  provided  r^cyjr^ 
it  did  not  operate  to  the  prejudice  of  the  wife.  He  was  under  no  ^  " 
legal  disability,  nor  was  there  any  imposed  on  him  by  the  deed  :  indeed 
I  cannot  conceive  how  it  is  possible  for  one,  by  his  own  act,  to  put  it 
out  of  his  power  to  dispose  of  that  which  belongs  to  him.  His  assign- 
ment of  this  fund  to  the  trustee,  Spidle,  by  the  deed  of  3d  July,  1830, 
does  not  deprive  the  wife  of  any  interest  which  she  took  under  the  deed 
from  Lewis  Ciples  to  Francis  G.  Delesseline ;  on  the  contrary,  it  confers 
on  her  the  sole  power  of  directing  the  investment  of  it,  instead  of  sharing 
it  with  him — it  gives  her  the  whole,  instead  of  a  moiety  during  life — and, 
as  in  the  latter  deed,  limits  over  the  remainder  to  her  in  fee,  in  the  event 
of  her  surviving  him ;  there  cannot  therefore  be  any  question  about  the 
power  of  Francis  A.  Delesseline  to  have  made  this  disposition  of  the 
funds.  If  the  wife  had  survived,  and  this  had  been  a  bill  to  subject  the 
property  to  the  payment  of  the  debts  of  Francis  A.  Delesseline,  another 
and  a  very  ditferent  question  would  have  arisen ;  but  her  claims  are  now 
out  of  the  way,  and  this  is  a  contest  between  creditors  for  priority,  and 
having  shown  that  the  power  of  Francis  A.  Delesseline,  over  the  fund  in 
bank  to  the  extent  of  his  interest,  on  which  there  could  be  no  legal  lien, 
was  absolute,  it  follows  that  the  rights  of  the  creditors  must  be  deter- 
mined by  the  interest  which  he  had  in  the  house  and  lot  in  Wentworth 
street  under  the  deed  from  Milliken  to  Spidle.  By  referring  to  the  dates, 
it  will  be  seen  that  when  the  judgment  of  the  Bank  was  obtained  on  the 
21st  April,  1828,  the  fund  was  in  bank,  and  that  it  was  invested  by  the 
trustee  in  the  house  and  lot  in  Wentworth  street,  on  the  5th  July,  1830 — 
that  Francis  A.  Delesseline  assigned  his  interest  in  it  to  the  plaiiitilfs  on 
the  20th  June,  1832,  and  that  the  remainder  became  vested  in  Francis 
A.  Delesseline,  on  the  death  of  his  wife  shortly  after — and  out  of  this 
state  of  things  the  following  questions  arise  : 

1st.  Whether  Francis  A.  Delesseline  had  such  an  interest  in  the  house 
and  lot.  as  was  subject  to  the  lien  of  the  judgment  of  the  Bank  ? 

2d.  Whether,  if  he  had  not,  it  was  bound  by  the  assignment  made  by 
him  to  the  plaintiffs,  for  the  payment  of  the  money  due  them  ?  By  the  terms 
of  the  deed  from  Milliken  to  Spidle,  the  trusts  were  limited  to  the  use  of 
Amelia  Delesseline,  the  wife,  for  life,  and  at  her  death  to  her  issue,.and  on  her 
dfeath  without  issue,  over  to  Francis  A.  Delesseline  in  fee  ;  so  that  all  the 
interest  which  he  had,  was  a  fee  simple  dependent  on  the  contingency  of  his 
wife  dying  *  without  issue,  he  surviving — an  interest  or  estate  r^ni, 
falling  directly  within  Mr.  Fearne's  definition  of  a  contingent  ^ 
remainder,  as  contra-distinguished  from  a  vested  remainder — a  remainder 


188  SOUTH   CAROLINA    EQUITY    REPORTS.  [*241 

in  an  estate  so  limited,  as  to  depend  on  an  event  or  condition  wliicli  may 
never  happen  or  be  performed. — Fearne  on  Rem.  1.  And  I  feel  some 
difficulty  in  demonstrating  that  this  is  not  such  an  estate  or  interest  as 
would  be  subject  to  the  lien  of  a  judgment,  the  proposition  presenting 
itself  to  my  mind  as  one  which  is  self-evident.  "Wherever  there  is  a  lien,  it 
follows  necessarily,  that  the  thing  to  which  it  attaches  may  be  sold  in 
satisfiiction  of  the  judgment ;  it  must  therefore  have  a  present  existence 
and  visible  form  to  enable  the  sheriff  to  take  possession  of,  and  transfer 
it  to  the  purchaser,  if  it  is  capable  of  manual  delivery.  It  is  for  this 
reason  that  choses  in  action  are  not  the  subject  of  levy  and  sale  ;  they 
have  in  themselves  no  visible  form,  or  tangible  existence,  and  are  the 
mere  representatives  of  something  more  substantial,  and  are  not  within 
the  reach  of  the  sheriff,  nor  is  he  capable  of  transferring  them.  Hope- 
less indeed  would  be  the  condition  of  an  unfortunate  debtor,  if  not  only 
what  he  had,  but  also  what  he  might,  by  any  possibility  afterwards  ac- 
quire, was  the  subject  of  execution  and  sale  :  purchasers  would  not 
readily  put  a  high  estimate  on  such  possibilities,  and  the  danger  of  sac- 
rifices would  itself  oppose  a  strong  reason  for  not  subjecting  them  to  sale. 
No  case  directly  in  point  has  been  cited,  either  from  the  English  or 
American  authorities,  and  it  is,  I  think,  a  reasonable  inference,  that  it 
has  been  regarded  as  admitting  of  no  doubt ;  indeed,  I  did  not  under- 
stand the  counsel  for  the  Bank,  as  relying  on  the  binding  efficacy  of  their 
judgment,  until  the  life  estate  of  Mrs.  Delesseline  was  terminated  by  her 
death.  The  case  of  Bozart  v.  Parry  et  al.,  1  Johnson's  Ch.  Rep.  52, 
bears  however  some  analogy  to  it.  There  A.  being  seized  of  land,  agreed 
to  sell  to  B.,  and  received  a  part  of  the  consideration,  and  undertook  to 
make  titles  to  B.,  when  he  should  pay  the  balance.  Two  years  after- 
wards, the  balance  still  being  unpaid,  B.  assigned  A.  's  contract  to  S. ,  and  it 
was  held  that,  although  S.  might  have  compelled  the  specific  performance  of 
the  contract,  yet  his  interest  in  the  land  was  a  mere  equity,  and  not  the 
subject  of  levy  and  sale  under  an  execution  against  him  at  the  suit  of  a 
third  person  ;  and  that  judgment  was  affirmed  on  an  appeal  to  the  Court 
of  Errors.  But  Francis  A.  Delesseline  could  not,  himself,  have  trans- 
♦24-91  f^'^^^d  this  remainder  by  a  *common  law  conveyance  of  lease  and 
"'-'  release,  upon  the  principle  that  one  cannot  grant  that  which  he 
does  not  possess.  Fearne  on  Rem.  461,  537.  And  it  follows  necessar- 
ily, that  the  sheriff,  the  agent  appointed  by  law  to  represent  him  in 
making  the  title  to  one  who  purchased  under  a  sale  by  fieri  facias,  is 
incompetent  to  do  so;  the  judgment  could  not  therefore  have  had  alien, 
because  it  would  have  been  inoperative.  It  seems  however  to  be  well 
settled,  that  although  a  contingent  remainder  is  not  transferable  by  the 
ordinary  common  law  conveyance,  yet  an  assignment  of  it  for  a  valuable 
consideration  will  be  supported  in  equity  as  an  agreement,  which  will  be 
specifically  enforced.  Of  this,  the  case  of  Wright  v.  Wright,  1  Ves. 
409,  cited  at  the  bar,  will  suffice  as  an  example.  There  a  testator  de- 
vised lands  to  his  two  daughters  and  their  heirs ;  but  that  if  either  of 
them  should  marry  without  the  consent  of  his  executors,  the  daughter  so 
marrying  should  only  have  an  estate  for  life  therein,  and  if  either  of  them 
should  die  unmarried,  to  his  son,  R.  in  fee,  on  his  paying  £500  to  the 
surviving  daughter.  R.,  the  son,  in  the  lifetime  of  both  the  daughters, 
in  consideration  of  love  and  affection,  granted  his  interest  to  his  young- 


*242]  CHARLESTON,    MARCH,    1835.  189 

est  son,  Gr.  ; — R.,  the  son,  first  died,  and  afterwards  one  of  tlie  dan^'-litcrs 
died  unmarried,  and  upon  a  bill  filed  by  the  eldest  son  of  11.  eliiimiii'^ 
the  estate,  as  heir  at  law  to  his  father  on  the  payment  of  the  ITjOO  to 
the  surviving  daughter,  it  was  held  by  Lord  Hardwicke,  that  he  was 
bound  by  the  assignment  of  the  father  to  the  youngest  son,  G  :  and  he 
remarks,  that  the  Court  admits  the  contingent  interest  of  a  term  for 
years  to  be  disposed  of  for  valuable  consideration,  though  the  law  does 
not,  and  that  there  was  no  difference  between  allowing  the  assignment  of 
the  possibility  of  a  chattel  real,  and  the  possibility  of  an  inheritance. 

There  is  nothing  novel  or  extraordinary  in  the  doctrine  of  this  and 
other  cases  like  it,  several  of  which  are  collected  by  Fearne  in  his  Treatise 
on  Executory  Devises,  p.  439,  522,  et  seq.  All  that  is  necessary  to  a 
valid  contract  is,  that  it  should  be  made  by  parties  competent  to  con- 
tract, that  there  should  be  a  good  consideration,  and  that  the  thing  to  be 
done  or  performed  should  be  lawful  and  possible ;  and  I  cannot  perceive 
why  one  may  not  bind  himself  to  do,  or  perform  an  act,  his  power  over 
which  depends  on  a  contingency,  if  that  contingency  should  happen,  as 
well  to  do  or  perform  one  at  a  future  day,  which  he  is  competent  to  do  at 
the  time.  If  the  contingency  does  happen,  the  moral  obligation  is  pre- 
cisely the  *same,  and  it  is  not  opposed  by  any  rule  of  positive  r*c)j^q 
obligation,  and  equity  will  enforce  its  execution  precisely  to  the  ^ 
same  extent.  I  ilm  therefore  very  clearly  of  opinion,  that  Francis  A. 
Delesseline  was  bound  by  his  assignment  to  the  plaintiffs,  and  that  equity 
would  have  enforced  that  contract  against  him. 

But  it  has  been  insisted  in  the  defence,  that  conceding  the  assignment 
of  Delesseline  to  the  plaintiffs  to  be  valid,  yet,  being  the  assignment  of  a 
mere  possibility,  no  lien  would  attach  until  the  contingency  on  which  it 
depended  took  place — that  is  to  say,  the  death  of  Mrs.  Delesseline  with- 
out issue — that  in  the  surae  instant  the  lien  of  the  judgment  attached,  the 
remainder  having  become  vested  in  Francis  A.  Delesseline,  and  being 
the  oldest,  ought  to  be  preferred  :  and  the  defence  has  been  made  to  rest 
principally  on  this  ground.  There  is  some  plausibility  in  this  argument, 
but  it  will  not  bear  examination.  It  has  been  before  shown,  that  the 
judgment  had  no  lien  on  the  property  until  the  remainder  vested  in 
Francis  A.  Delesseline.  It  attached,  then,  in  virtue  of  the  title  in  him, 
and  that  was  burdened  with  the  equity  arising  out  of  the  assignment  to 
the  plaintiffs,  a  claim  as  meritorious  as  that  of  the  Bank.  Deriving  their 
right  from  Delesseline,  the  Bank  could  not  be  in  a  better  situation  than 
he  would  have  been.  Suppose  that  in  the  instant  the  remainder  vested, 
he  had  granted  it  to  the  Bank  with  notice  of  the  prior  assignment  to  the 
plaintiffs,  would  that  have  superseded  the  prior  equity  of  the  plaintiffs? 
Certainly  not.  And  what  magic  is  there  in  the  lien  of  a  judgment,^  in 
itself  a  mere  equity,  which  gives  a  higher  claim  to  the  property  on  which 
it  attaches  than  would  a  conveyance  in  fee-simple  ? 

It  is  therefore  ordered  and  decreed  that  the  decree  of  the  Circuit  Court 
be  reversed,  and  that  it  be  referred  to  the  Master,  to  ascertain  whether 
anj-,  and  what  amount  remains  due  on  the  note  endorsed  by  the  plaintiffs 
for  Francis  A.  Delesseline,  and  discounted  at  the  Branch  Bank  in  George- 
town ;  and  whether  any,  and  what  amount  of  principal  or  interest  has 
been  paid  by  the  plaintiffs,  on  account  of  the  said  note  ;  and  that  the 
plaintiffs  be  credited  in  the  books  of  the  said  Bank  with  the  amount  of 


190  SOUTH    CAROLINA   EQUITY   REPORTS.  [*243 

the  principal  and  interest,  if  any,  which  may  remain  due  and  owing 
thereon,  and  that  the  defendants  do  pay  to  the  plaintiffs  the  amount,  if 
any,  which  they  may  be  found  to  have  paid  on  account  of  the  principal 
and  interest  of  the  said  note — costs  to  be  paid  by  the  defendant. 


* 


244] 


*Henry  Deas  and  Wife,  vs.  Ann  Julia  Horry,  Charles  D. 
Manigault  and  Wife,  and  Edward  R.  Laurens  and  Wife. 

A  remaimler  cannot  be  limited  after  a  fee  conditional.  [*246] 

Testator  by  his  will  devised  an  estate  to  liis  son,  E  L.,  for  life,  and  at  his  death  to 
the  first  son  of  E.  L.,  and  the  heirs  of  his  body  lawfully  issuing,  and  in  default 
of  such  issue,  to  the  second,  and  every  other  son  of  E.  L.  successively  and  in  the 
order  of  birth,  and  to  the  several  heirs  of  their  bodies  in  like  manner;  and  in 
default  of  sons,  with  like  limitations  to  the  first,  second  and  every  daughter  of 
E.  L.  and  successively  in  the  order  of  their  birth,  and  the  several  heirs  of  their 
bodies,  &c.:  and  died  in  1785,  leaving  one  son,  E.  L.,  and  a  daughter.  His  son, 
E.  L.,  the  tenant  for  life  had  a  son  and  three  daughters;  the  son  of  E.  L.  died  in 
1797,  without  issue,  and  his  father  in  1831: — Ileld,  that  the  first  son  of  E  L. 
took  a  fee  conditional;  that  all  the  remainders  after  the  devise  to  him,  were  void; 
and  that  on  his  death,  in  1797,  the  fee  reverted  to  the  right  heirs  of  the  testator. 
[*247] 

Although  the  testator  died  before  the  Act  of  1791,  abolishing  the  right  of  primogen- 
iture, the  reversion  must  go  to  those  who  were  heirs  at  the  time  the  fee  conditional 
determined.  [*li48] 

A  possibility  of  reverter  is  not  devisable,  (per  Harper,  J.)  [*248] 

Before  Chancellor  De  Saussure,  Charleston,  January,  1834. 

This  bill  was  filed  for  partition  between  the  plaintiffs  and  defendants, 
of  a  plantation  called  Hickory  Hill,  and  for  a  moiety  of  the  rents  and 
profits,  from  the  death  of  Elias  Lynch  Horry,  in  183L 

In  1783,  Elias  Horry,  the  father  of  said  Elias  Lynch  Horry,  deceased, 
and  of  the  plaintiff,  Margaret  Deas,  made  his  last  will  and  testament, 
duly  executed,  to  pass  real  estate,  containing  the  following  clause  : 

"I  give  and  devise  unto  my  son,  Elias  Lynch  Horry,  for  and  during 
the  term  of  his  natural  life,  without  impeachment  of  or  for  any  manner  of 
waste,  all  that  (my)  plantation  or  tract  of  land,  situate  in  Prince  George's 
Parish,  in  this  State,  called  or  known  by  the  name  of  Bear  Hill,  [here  the 
property  is  particularly  described,]  and /ro?n  and  after  Jiis  decease,  to  the 
Jirst  son  of  the  said  Elias  Lynch  Horry,  and  the  heirs  of  the  body  of 
such  first  son,  lawfully  issuing,  and  for  default  of  such  issue,  then  to 
the  second,  third,  fourth,  fifth,  sixth,  seventh,  eighth,  ninth,  tenth,  and 
all  and  every  other,  the  son  and  sons  of  the  said  Elias  Lynch  Horry, 
severally  and  successively  and  in  remaiyider,  one  after  another  as  they 
and  every  of  them  shall  be  m  seniority  of  age  and  priority  of  birth, 
and  the  several  and  respective  heirs  of  the  body  and  bodies  of  all  and 
every  such  son  and  sons,  lawfully  issuing,  the  elder  of  such  sons  and 
the  heirs  of  his  body,  lawfully  issuing,  being  aliuays  to  be  preferred 
and  to  take  before  the  younger  of  such  sons,  and  the  heirs  of  his  or 
their  body  or  bodies  issuing;  and  for  default  of  such  issue,  then  to  the 
first  daughter  of  the  said  Elias  Lynch  Horry,  and  the  heirs  of  the  body 
of  such  first  daughter,  lawfully  issuing  and  for  default  of  such  issue, 


*244]  CHARLESTON,    MARCH,    1835.  191 

then  to  the  second,  third,  fourtli,  fifth,  sixth,  seventh,  eighth,  niiitli,  tenth, 
and  all  and  every  other  the  daughter  and  daughters  of  the  said  Ellas  Lvnch 
Horry,  severally  and  successively,  and  in  remainder,  one  after  anolhor,  as 
they  and  every  of  them  shall  be  in  seniority  of  age  and  priority  of  I)irth, 
and  the  several  and  respective  heirs  of  the  body  and  bodies  of  all  and 
every  such  daughter  and  daughters  lawfully  issuing,  the  elder  of  such 
daughter  and  *the  heirs  of  her  body,  lawfully  issuing,  being  always  r^jcn -r- 
to  be  preferred  and  to  take  before  the  younger  of  such  daughters  L 
and  the  heirs  of  her  or  their  body  or  bodies  issuing,  subject  nevertheless 
to  the  several  limitations,  conditions,  restrictions  and  provisions  herein- 
after mentioned  of  and  concerning  the  same" — and  died  in  1785,  leaving 
the  said  will  in  full  force.  Elias  Lynch  Horry  entered  on  the  devised 
premises,  married  and  had  a  son  named  Elias  Lynch  Horry,  who  died  in 
the  month  of  July,  1797,  unmarried  and  without  issue.  Elias  Lynch 
Horry,  the  father,  died  on  or  about  the ,  1831,  leaving  three  daugh- 
ters, Ann  Julia,  Horry,  Emma  L.,  who  intermarried  with  Charles  D. 
Manigault,  and  Margaret  H,  who  intermarried  with  Edward  R.  Lau- 
rens, his  sole  heirs  at  law ;  and  now  the  said  Margaret  Deas  and  the  said 
three  daughters  of  Elias  Lynch  Horry,  are  the  sole  heirs  at  law  of  the 
testator,  Elias  Horry. 

The  plantation  named  Bear  Hill,  in  the  said  devise,  has  been  exchanged 
for  the  plantation  called  Hickory  Hill,  and  this  latter  is  in  all  respects 
substituted  in  the  place  of  the  former.  The  plaintiffs  contend,  that  under 
the  facts  stated,  and  the  law  of  this  State,  Mrs.  Deas  is  entitled  to  one 
moiety  of  the  plantation,  and  of  the  rents  and  profits  from  the  death  of 
the  tenant  for  life,  Elias  Lynch  Horry.  The  defendants  demurred  to 
the  bill. 

The  Chancellor  sustained  the  demurrer  and  dismissed  the  bill,  and 
from  his  decree  the  plaintiffs  appeal  on  the  grounds  : — 

1.  That  the  fee  conditional  created  by  the  will  of  the  testator  vested  in 
the  son  of  Elias  Lynch  Horry,  and  in  becoming  so  vested,  all  the  subse- 
quent limitations  were  void 

2.  That  a  fee  cannot  be  limited  after  a  fee,  to  take  effect  on  an  indefi- 
nite failure  of  issue. 

3.  That  on  the  death,  in  July,  1797,  of  the  son  of  Elias  Lynch  Horry, 
the  possibility  of  reverter  of  the  fee  conditional  vested  in  the  said  Elias 
Lynch  Horry,  and  the  plaintiff,  Mrs.  Deas,  as  the  sole  heirs  at  law  of  the 
testator,  Elias  Horry,  subject  to  the  estate  of  the  tenant  for  life,  Elias 
Lynch  Horry. 

4.  That  on  the  death  of  Elias  Lynch  Horry,  the  plaintiff,  Mrs,  Deas, 
became  entitled  to  the  possession  of  one  moiety  of  the  said  plantation, 
and  the  defendants  to  the  other  moiety. 

5.  That  the  plaintiffs  are  entitled  to  a  moiety  of  the  rents  and  profits 
from  the  death  of  Elias  Lynch  Horry. 

"^Petigru  and  King,  for  the  appellants,  cited  and  commented  on  r+oic 
the  following  authorities :  Archer's  case,  1  Co.  63 ;  Fearne  on  Rem.  L 
314,  514,  n.  1,  lb.  517  ;  Adams  v.  Chaplin,  1  Hill's  Ch.  265  ;  3  T.  R.  489  ; 
4  lb.  39  ;  2  Bail.  248  ;  3  Cruise,  461,  tit.  29,  Ch.  4,  s.  2  ;  Fearne,  548  ; 
1  Russ.  &  Milne,  117 ;  8  Wheat  77  ;  1  Dom.  411 ;  4  Kent's  Com.  258-9, 
3  Ed.  ;  Fearne,  371-2;  1  Cruise,  19;  4  P.  W.  372;  Co.  Lit.  426. 


192  SOUTH   CAROLINA   EQUITY    REPORTS.  [*246 

R.  B.  Smith  and  Dunkin,  contra,  cited  the  following  :  Bract.  2  book, 
sect  6;  Fearne,  383,  354;  2  Sannd.  38U;  2  Bl.  Com.  110;  Plow.  241; 
2  Prest.  301 ;  1  Ves.  Ill ;  1  Hill's  Ch.  273,  298;  1  Co.  Lit.  219,  255  : 
2  Atk.  282;  Fearne,  378;  1  Prest.  75;  4  Kent's  Cora  498;  4  Com. 
Dig.  248,  tit.  Est  K.;  8  East,  568  ;  1  Taunt.  585-6,  604  ;  2  Prest.  204; 
3T.  R.  88;  2  Bur.  1131;  1  W.  Black.  Rep.  251;  2  Eq.  Rep.  Ill, 
112  ;  2  Bos.  &  Pul.  665  ;  Cruise,  tit.  29,  sect.  16. 

Harper,  J.  There  would  be  no  question  respecting  this  will  in 
England.  It  would  have  given  an  estate  for  life  to  Elias  Lynch  Horry, 
the  father,  with  remainder  in  tail  to  his  first  and  other  sons,  and  in  de- 
fault of  sons,  to  his  daughters,  successively,  in  the  order  of  birth,  leaving 
the  reversion  in  the  testator's  right  heirs  On  the  birth  of  the  son,  the 
remainder  in  tail  would  have  vested  in  him,  and  on  his  death,  in  1797, 
would  have  vested  in  interest  in  the  eldest  daughter  of  Elias  Xynch 
Horry,  the  elder,  and  on  his  death,  in  1831,  would  have  vested  in  posses- 
sion, leaving  the  reversion  still  in  the  right  heirs  of  the  testator. 

In  like  manner  with  us,  there  is  no  doubt  but  that  Elias  Lynch  Horry, 
the  father,  took  an  estate  for  life,  and  that  on  the  birth  of  the  son,  a  fee 
conditional  in  the  land  vested  in  him.  The  first  question  is  as  to  the 
validity  of  any  remainder  limited  after  the  first  devise  of  the  fee  con- 
ditional. In  the  case  of  Mazyck  v.  Yanderhorst,  decided  by  this  Court, 
it  was  determined  that  no  remainder  could  be  limited  after  a  fee  con- 
ditional. The  same  thing  was  determined  by  me,  as  Chancellor,  upon 
full  consideration  in  the  case  of  Bailey  v.  Seabrook,  on  the  clear  prepon- 
derance of  the  more  modern  authorities,  notwithstanding  the  authorities 
of  Bracton  and  Fleta,  showing  the  existence  of  a  different  rule  in  their 
times.  The  same  point  was  again  determined  by  me,  in  the  case  of 
Chaplin  v.  Adams,  1  Hill's  Ch.  R.  265,  which  determination  was  affirmed 
by  this  Court. 

*2471  *^^  ^^  ^^^^  ^^^  ^^^  ^^^  ^^^®  °^  Bailey  v.  Seabrook,  I  threw  out 
^  the  suggestion,  on  the  authority  of  the  quotations  from  Bracton 
and  Fleta,  that  before  the  statute  de  donis,  there  might  have  been  a 
limitation  of  the  fee  conditional  to  several  in  succession,  each  taking  the 
same  qualified  estate  without  having  relation  to  the  ultimate  possibility 
of  reverter ;  a  sort  of  substitution  not  involving  the  power  to  limit  the 
fee  absolue ;  but,  as  said  in  that  case,  this  is  speculation  too  uncertain  to 
found  a  conclusion  upon.  The  passages  referred  to,  import  that  the 
ultimate  possibility  or  fee  absolute  may  be  limited."  The  whole  current 
of  English  authorities  is  that  no  remainder  can  be  limited  after  a  grant 
of  the  fee  simple  conditional ;  and  the  reasoning  of  the  cases  illustrates 
this,  because  by  the  grant  the  first  taker  has  the  whole  estate,  so  that 
there  is  nothing  left  in  the  grantor  to  be  the  subject  of  a  further  grant; 
and  the  further  reason  assigned  in  William  and  Berkley,  Plowd.  235, 
239,  and  other  authorities,  that  before  the  statute,  no  formedon  in 
remainder  lay,  so  that  such  a  remainder  man  would  have  been  without 
remedy.  This  has  certainly  been  the  law  of  England  since  the  time  of 
Plowden — and  should  we  be  authorized  to  depart  from  it  on  our  con- 
struction of  the  older  authorities  ? 

AH  remainders,  then,  after  the  devise  to  the  first  son  of  Elias  Lynch 
Horry  were  void;  and  on  his  death  in  1797,  his  estate  was  determined 


*0  1-7 


247]  CHARLESTON,  MARCH,  1835.        ,    193 

and  the  fee  reverted  to  and  vested  in  the  right  heirs  of  the  testator,  Eiias 
Horry.  Who  were  those  right  heirs  ?  At  the  death  of  the  testator, 
before  the  passing  of  the  Act  of  1191,  abolishing  the  riglit  of  primogeni- 
ture, his  son,  Elias  Lynch  Horry,  was  his  heir  at  law ;  but  at  the  death  of 
his  son  in  1797,  the  father,  Elias  Lynch  Horry,  together  with  his  sister, 
the  plaintiff,  Mrs.  Deas,  according  to  the  provisions  of  that  act,  answered 
the  description  of  the  testator's  heirs  at  law.  The  point  was  considered 
by  me  in  Adams  v.  Chaplin,  in  which  case  also  a  fee  conditional  was 
devised  by  a  testator  who  died  before  the  Act  of  1791,  and  the  estate 
determined  after  the  act.  I  refer  to  that  case  for  the  rule  of  the  English 
law — "  That  where  a  person  entitled  to  an  estate  in  remainder  or  rever- 
sion expectant  on  a  freehold  estate,  dies  during  the  continuance  of  the 
particular  estate,  the  remainder  or  reversion  does  not  descend  to  his  heir, 
loecause  he  never  had  a  seizin  to  render  him  the  stock  or  root  of  an  in- 
heritance, but  it  will  descend  to  the  person  who  is  heir  to  the  first  pur- 
chaser of  such  remainder  or  reversion,  at  the  time  when  it  comes  into 
*possession" — and  for  the  reasons  which  induced  me — supposing  r^^^.r. 
the  rule  to  be  different  with  respect  to  a  remainder  or  reversion  L  ^ 
under  our  statute  of  distributions,  yet  to  conclude  that  with  respect  to  a 
fee  conditional,  the  estate  must  go  to  the  person  who  can  make  himself 
heir  to  the  grantor  of  the  fee  conditional,  when  that  estate  determines. 
It  was  argued  that  on  the  death  of  Elias  Horry,  the  right  of  reverter 
descended  on  his  son,  Elias  Lynch  Horry,  and  it  seemed  to  be  thought 
that  this  right  could  not  be  divested  by  the  act  of  legislature.  But  why 
not  ?  It  belongs  to  the  legislature  to  direct  the  course  of  descent,  and 
declare  who  shall  be  heir.  It  is  true  that  the  right  of  reverter  descended 
on  Elias  Lynch  Horry  in  this  sense,  that  if  the  fee  conditional  had  deter- 
mined at  any  time  after  the  death  of  his  father,  and  before  the  Act  of 
1791,  he  would  have  been  the  person  then  entitled  to  the  benefit  of  it. 
But  that  right  he  could  not  have  transmitted  to  his  heir,  if  the  Act  of 
1791  had  never  been  passed.  Such  a  right,  according  to  the  views 
before  expressed,  is  not  regarded  as  proper'ty,  it  is  a  mere  possibility, 
analogous  in  some  degree  to  an  heir  apparent's  right  of  succession. 

Besides,  as  was  justly  observed  in  argument,  if  the  act  of  the  legislature 
is  not  to  have  effect,  it  must  be  on  the  ground  that  it  is  opposed  to  those 
provisions  of  the  constitution,  which  are  intended  for  the  protection  of 
private  property.  There  is  no  other  restraint  than  the  constitution  on 
the  legislature.  But  the  constitution  itself  provides  that  the  right  of 
primogeniture  shall  be  abolished,  and  in  passing  the  Act  of  1791,  the 
legislature  was  only  carrying  the  direction  of  the  constitution  into  effect. 

It  was  further  argued  that  the  right  of  reverter  having  descended  on 
Elias  Lynch  Horry,  the  father,  passed  under  the  residuary  clau.se  of  his 
will  to  his  daughter.  But  this  is  a  plain  misconception.  At  the  time  of 
his  death  there  was  no  possibility  of  reverter.  The  fee  had  long  before 
vested  in  himself  and  his  sister,  Mrs.  Deas,  and  he  could  not  divest  her 
interest  by  his  will.  But  I  do  not  hesitate  to  express  my  opinion  that 
such  a  possibility  of  reverter  is  not  devisable.  An  authority  relied  on 
was  the  note  to  Kent's  Com.  vol.  4,  p.  498,  n.  d.  "  Mr.  Preston  doubts 
whether  a  mere  possibility  of  reverter  be  devisable,  but  there  seems  to  be 
no  reason  for  doubt  since  the  decision  in  Jones  v.  Roe."  But  with 
proper  deference  to  that  distinguished  jurist,  it  does  not  appear  to  me 


194  SOUTH    CAROLINA   EQUITY   REPORTS.  [*248 

-,  that  the  case  of  Jones  v.  Roe  (3  T.  R.  88)  concludes  this  *raatter. 
"^  -•  What  is  determined  in  that  case  is,  that  an  executor  devise  is 
devisable  ;  that  is,  the  interest  which  the  devisee  takes  before  the  event 
on  which  it  depends  is  determined.  It  is  said  that  a  possibility  coupled 
with  an  interest  is  devisable.  But  I  am  persuaded  that  the  right  of 
reverter  is  not  regarded  as  such  a  possibility.  In  the  case  of  Goodright 
V.  Forrester,  8  East,  552,  subsequent  to  Jones  v.  Roe,  it  was  determined 
that  the  right  of  entry  could  not  be  devised  under  the  Stat.  Wills,  21  H. 
8,  C.  1,  which  provides  that  persons  "having  manors,  lands,  tenements 
or  hereditaments,^'  may  dispose  of  them  by  will.  It  was  argued  on  the 
terras  of  our  statute  of  1789,  which  authorizes  any  person  having  "right 
or  title  to  any  lands,  tenements  or  hereditaments  whatever,"  to  dispose 
of  them,  that  the  possibility  of  reverter  is  an  hereditament,  being  des- 
cendible, and  is  therefore  devisable.  The  possibility  of  reverter  is  des- 
cendible in  the  sense  I  have  before  pointed  out ;  and  exactly  in  th'e  same 
sense  the  right  of  entry  is  descendible,  and  there  seems  to  be  no  substan- 
tial difference  in  the  words  of  the  two  statutes.  But  what  is  a  right  of 
entry  ?  The  party  has  been  divested  of  the  estate  by  disseisin,  but  has 
the  perfect  present  right  of  re-investing  himself  with  the  title  by  entry. 
Mr.  Preston,  in  his  elaborate  argument  of  the  case  of  Goodright  v-  For- 
rester, in  the  Exchequer  Chamber,  1  Taunt.  603,  (where  it  was  finally 
det'.rmined  on  different  grounds,  without  impugning  the  decision  of  the 
Court  of  King's  Bench  on  the  point,)  admits  the  authority  of  Jones  v. 
Roe,  but  argues  that,  in  point  of  law,  though  it  is  otherwise  in  point  of 
fact,  a  right  or  title  of  entry  is  no  interest ;  at  least  no  interest  for  the 
purpose  of  disposition,  though  it  is  an  interest  which  may  be  released,  it 
is  merely  a  naked  loossibility.  But  he  who  has  the  possibility  of  reverter, 
has  no  present  interest,  either  in  law  or  in  fact,  and  the  presumption  is, 
that  he  will  never  have  any,  the  whole  estate,  according  to  the  cases,  is  in 
the  tenant  in  fee  conditional.  Is  this  less  a  naked  j^ossibilityf — The 
only  decree  which  can  be  made  at  present  is,  that  the  decree  of  the 
Chancellor  be  reversed,  and  the  demurrer  overruled,  and  it  is  Ordered 
and  decreed  accordingly. 

Johnson,  J.  and  O'Neall,  J.  concurred. 


*250i  *'^°^^  Klinck,  Administrator  of  Michael  Keckley,  v.  Edward 
-*  Keckley,  Executor  of  George  Keckley. 

A  renunciation  of  dower  on  a  mortgage  cannot  operate  beyond  the  estate  conveyed 
so  as  to  have  the  effect  of  a  perpetual  bar — it  can  only  postpone  the  claim  of 
dower  to  the  satisfaction  of  the  lien,  and  the  land  stands  as  a  security  for  the 
debts  secured  by  the  mortgage  unincumbered  by  the  wife's  rights;  the  other 
creditors  have  no  right  to  the  aid  of  the  wife's  dower  for  the  payment  of  their 
debts:  therefore  where  the  wife  had  renounced  her  dower  on  mortgages  by  her 
husband,  and  after  his  death  on  marshaling  his  assets  in  the  Court  of  Equity 
the  mortgage  debts  were  paid  out  of  the  personalty,  it  was  held  that  the  widow 
was  entitled  to  her  dower,  and  a  sum  of  money  assigned  in  lieu  thereof,  was 
ordered  to  be  paid  to  her,  out  of  the  land  which  was  ordered  to  be  sold  for  the 
payment  of  debts.  [■*25'2] 

The  common  law  prerogative  of  the  King  to  be  paid  in  preference  to  all  other 


*250]  CHARLESTON,  MARCH,  1835.  195 

creditors,  does  not  apply  to  the  State.  The  right  of  the  State  depends  in  this 
respect  altogether  on  the  statute  law.  The  Act  of  1789,  prescribing  the  order  in 
which  the  debts  of  a  deceased  person  shall  be  paid,  gives  the  preference  to  the 
State  only  where  the  intestate  is  indebted  to  the  State  and  a  citizen  in  erjual 
degree;  and  therefore  a  junior  judgment  in  favor  of  Coniniissioners  of  the  poor, 
(conceding  it  to  be  a  debt  due  to  the  public,)  is  not  entitled  to  be  paid  in  pre- 
ference to  senior  judgments  of  other  creditors.  [*2oG] 

This  case  came  up  at  Charleston,  in  April,  1834,  before  Chancellor 
Johnson,  on  the  report  of  the  Commissioner,  made  in  pursuance  of 
several  orders  calling  in  the  creditors  of  George  Keckley,  and  requiring 
the  Commissioner  to  receive  further  demands  against  the  estate,  in  order 
that  the  assets  might  be  marshaled. 

Among  other  demands,  the  Commissioners  of  the  poor  on  Charleston 
neck  presented  a  judgment  against  George  Keckley,  in  the  name  of  John 
Robinson,  for  the  nse  of  the  said  Commissioners,  founded  on  a  due-bill: 
and  it  was  proved  that  Keckley  had  acted  as  chairman  of  the  board  of 
Commissioners,  received  the  poor  tax  during  his  term  of  office,  and  on 
its  expiration,  accounted  with  Mr.  Robinson,  his  successor,  and  gave  this 
due  bill  for  a  balance  in  his  hands.  It  was  insisted  that  this  was  a  debt 
due  to  the  public,  and  therefore  entitled  to  a  preference. 

The  widow  of  George  Keckley,  ))y  virtue  of  an  order  of  Court  in 
another  case,  claims  to  be  paid  out  of  the  funds  in  this  ease,  a  sum 
assessed  to  her  for  dower.  The  facts  in  relation  to  this  claim  are  fully 
stated  in  the  opinion  of  the  Appeal  Court. 

The  Chancellor  held,  that  the  demand  of  the  Commissioners  of  the 
poor,  could  rank  only  as  a  judgment  debt;  and  decreed  the  amount 
claimed  by  the  widow  for  dower  to  be  paid,  on  the  ground  that  the 
previous  decretal  order  was  binding  on  him,  and  could  only  be  set  aside 
by  the  Appeal  Court. 

From  this  decree  the  Commissioners  of  the  poor  appealed,  on  the 
grounds : — 

1.  That  the  Chancellor  erred  in  decreeing  that  their  claim  should  only 
rank  as  a  judgment  debt,  whereas  it  is  submitted  that  it  should  rank  as  a 
debt  due  to  the  public,  and  be  paid  in  preference  to  all  other  claims 
reported  on. 

2.  That  the  Chancellor  erred  in  allowing  the  claim  for  dower,  as  it 
was  illegal  and  excessive  ;  and  the  decree  for  the  same  was  irregularly 
obtained  and  not  obligatory  on  the  creditors. 

M'Crady,  for  the  appcUants,  referred  to  1  Faust,  76 ;  2  Faust,  15  ;  A. 
A.  1813,  p.  13,14;  A  A.  1824  p.  66,67;  and  cited,  State  u.  Williams, 
1  N.  &  M'C.  26-28;  State  v.  Simpson,  1  Bail.  3t8. 

*0'jS'eall,  J,  The  first  question  made  in  this  case,  is  as  to  r*25i 
the  payment  to  the  widow  of  George  Keckley,  deceased,  of  the  '- 
amount  assessed  in  her  favor,  for  dower,  in  another  case  in  this  Court,  and 
dkected  to  be  paid  out  of  the  funds.  The  facts  out  of  which  the  ques- 
tion arises  seems  to  be,  that  George  Keckley  mortgaged  his  land  to  the 
Union  Bank,  and  the  Bank  of  the  State  ;  that  his  wife  renounced  her 
dower  on  these  mortgages.  Mr.  Keckley,  at  his  death,  was  found  to  be 
insolvent.  On  a  bill  against  his  executor,  by  his  widow,  a  sum  of  money 
in  lieu  of  dower,  was  assessed  by  the  Commissioners  under  the  writ  of 


196  SOUTH   CAROLINA   EQUITY   REPORTS.  [*251 

admeasurement  of  dower ;  their  return  was  confirmed,  and  the  sum 
assigned  was  ordered  to  be  paid  out  of  the  proceeds  of  the  sale  of  Mr. 
Keckley's  estate,  ordered  to  be  sold  in  this  case,  in  which  it  had  been  pre- 
viously ordered  to  advertise  for  creditors  to  come  in,  and  that  "the  Com- 
missioner shall  thereupon  marshal  the  assets  of  the  estate,  after  deducting 
the  amount  which  may  be  decreed  to  the  widow  as  dower,  setting  forth 
the  assets  of  the  estate,  and  the  amount  and  order  in  which  the  debts  are 
payable."  Under  this  order  the  creditors  have  come  in,  and  the  Com- 
missioner reports  that  he  has  paid,  out  of  the  sales,  the  mortgages,  and 
has  made  a  partial  payment  to  the  widow,  on  account  of  her  dower.  The 
personal  estate  was  more  than  enough  to  pay  the  debts  prior  to  the  mortga- 
ges and  the  mortgagees.  The  funds,  however,  will  not  be  sufficient  to  pay 
the  dower  and  all  the  intestate  debts.  The  widow  is  no  party  to  this  bill. 
She  is,  however,  entitled,  under  the  former  decree,  to  receive  her  dower 
out  of  the  assets  in  this  case,  and  it  might  be  difficult  for  the  creditors  in 
this  case  to  entitle  themselves  to  make  the  objection  in  this  informal  way 
to  the  widow's  claim  of  dower  ;  but  as  the  objection  was  at  last  rested  on 
the  impropriety  of  such  an  allowance  being  made  to  the  widow,  and  the 
objections  to  the  irregularities  (if  there  were  any)  in  the  proceedings  for 
the  admeasurement  of  her  dower,  were  not  insisted  on,  and  as  a  majority 
of  the  Court  are  very  clearly  of  opinion  that  she  is  entitled  to  dower,  we 
have  concluded  to  consider  the  point,  as  if  it  was  regularly  made. 

We  are  not  advised  of  the  form  or  manner  in  which  the  dower  was 
renounced  on  the  mortgages,  but  as  no  objection  was  made  on  account  of 
any  insufficiency  in  that  respect,  it  is  taken  for  granted  that  every  thing 
was  regular. 

"What  is  the  effect  of  this  renunciation  of  dower  ?  I  think  it  is 
*9'S91  *c^^''^^"  that  it  cannot  operate  beyond  the  estate  conveyed.  It  can- 
""-^  not  have  the  effect  of  a  perpetual  and  absolute  bar.  For  the 
mortgage  is,  as  against  the  mortgagor,  only  a  lien.  The  renunciation 
can  only  have  the  effect  to  postpone  the  claim  of  dower  to  the  satisfaction 
of  that  lien.  The  land  then  stands  as  a  security  for  the  payment  of  the 
debts  secured  by  the  mortgages,  unincumbered  by  the  wife's  rights.  If 
the  mortgages  had  been  paid  by  the  husband  in  his  lifetime,  the  wife's 
right  of  dower  would  have  been  restored.  Does  the  fact  of  their  pay- 
ment after  his  death,  in  a  regular  course  of  administration,  restore  the 
wife's  right  to  dower  ?  The  36th  section  of  the  Act  of  1789,  P.  L  494, 
directs  that  the  debts  due  by  any  testator,  or  intestate,  shall  be  paid,  viz  : 
1st.  Funeral  and  other  expenses  of  the  last  sickness,  and  of  administra- 
tion. 2d.  Debts  due  to  the  public.  3d.  Judgments,  mortgages,  and 
executions,  the  oldest  first,  &c.  Under  this  provision,  the  mortgagees 
were  entitled,  in  their  order,  to  be  paid  out  of  the  personal  estate  ;  and  if 
they  had  attempted  to  collect  their  debts  by  a  sale  of  the  real  estate  under 
a  decree  of  foreclosure,  I  think  the  widow  would  have  been  entitled  to 
the  application  of  the  personal  assets,  in  exoneration  of  the  land  ;  for  the 
other  creditors  have  no  right,  either  in  law  or  equity,  to  the  aid  of  her 
dower  for  the  payment  of  their  debts.  According  to  the  common  law, 
dower  is  preferred  to  purchasers  or  creditors.  The  latter  are  not  preju- 
diced by  allowing  the  dower  :  it  neither  increases  nor  diminishes  the  fund 
out  of  whicii  they  had  a  right  to  expect  payment — the  intestate^s  real  and 
personal  estate;  for  the  widow's  dower  is  no  part  thereof.     But  I  have 


*i52]  CHARLESTON,    MARCH,    1835.  197 

said  that  tbe  renunciation  of  dower  cannot  have  efifect  beyond  the  estate 
conveyed.  When  that  ceases,  the  renunciation  must  also  cease.  Tlie 
deed  of  a  feme  covert,  executed  under  and  agreeable  to  law,  onglit  to  l)e 
strictly  construed,  so  as  not  to  deprive  her  of  any  right  beyond  that 
actually  conveyed.  Here  the  legal  effect  of  her  renunciation  must  be 
controlled  by  the  terms  of  the  deed  on  which  it  is  made,  to  which  it  has 
reference,  and  of  which  it  is  a  part.  That  sets  apart  the  land  to  secure 
the  payment  of  a  debt :  the  dower  is  forever  renounced  if  the  land  is  sold 
under  the  mortgage  to  pay  that  debt.  This  makes  the  renunciation  in 
the  nature  of  a  collateral  mortgage.  If  the  husband's  mortgage  is  not 
foreclosed,  the  wife  is  most  clearly  not  barred  of  her  dower  ;  she  could 
demand  it  of  any  one  except  the  mortgagee ;  and  no  one  but  the  mort- 
gagee could  plead  *her  renunciation  in  bar  to  her  demand.  When  r^^Ko 
the  mortgage  is  paid  oft"  by  the  assets  of  the  husband,  none  of  his  ^ 
creditors  have  any  equity  to  set  it  up  against  the  wife,  for  she  has  gener- 
ally a  prior  equity  to  be  allowed  her  dower  ;  and  in  this  case  there  is 
nothing  to  take  it  out  of  the  general  rule  ;  for  the  legal  effect  of  her 
renunciation  is  removed  ;  and  when  that  is  done,  she  stands  as  if  she  had 
never  renounced  her  dower.  For  unless  she  had  received  some  beneficial 
interest  by  the  mortgage,  equity  could  not  undertake  to  control  the  law. 
On  examining  such  of  the  cases  as  I  have  been  able  to  refer  to,  the  prin- 
ciples which  I  have  stated  are  fully  sustained. 

In  Dolin  v.  Coltman,  1  Vern.  294,  the  wife  joined  her  husband  in  a 
mortgage,  and  levied  a  fine  to  bar  her  dower  ;  and  in  consideration  thereof 
the  husband  agreed  that  she  should  have  the  redemption  of  the  mortgage  : 
he  twice  subsequently  mortgaged  the  same  estate.  It  was  held  that  this 
agreement  to  redeem  was  fraudulent  against  the  junior  mortgages,  but 
that  the  wife  should  have  her  dower,  as  she  had  renounced  in  the  confi- 
dence of  having  the  equity  of  redemption.  This  case  shows  that  the 
renunciation  of  dower  by  the  wife  is  not  to  have  effect  beyond  her  intent, 
as  manifested  by  the  consideration  of  the  act  done.  Apply  that  principle 
to  the  case  before  us  :  what  was  the  consideration  of  her  renunciation  on 
the  mortgages  ?  To  secure  the  ultimate  payment  of  the  debts.  It  was 
the  same  as  if  she  had  said  to  the  mortgagees,  if  you  cannot  be  paid  your 
debts  but  by  a  sale  of  the  land,  I  will  not  claim  dower  out  of  it.  If  they 
could  be  otherwise  paid,  from  the  analogy  of  this  last  case,  she  could  not 
be  barred  from  her  dower ;  for  then  the  consideration  of  the  renunciation 
ceased ;  and  to  give  it  an  effect  beyond,  would  be  a  fraud  on  her.  In 
Titus  V.  Neilson,  5  J.  Ch.  Rep.  452,  the  husband  and  wife  legally  exe- 
cuted a  mortgage  of  the  land,  and  subsequently  the  husband  alone  exe- 
cuted another  mortgage.  On  a  bill  filed  by  the  first  mortgagee  against 
the  husband  and  wife  and  the  second  mortgagee,  for  a  foreclosure  of  his 
mortgage,  pending  the  proceedings  the  husband  died,  the  land  was  decreed 
to  be  sold,  and  after  payment  of  the  first  mortgage,  the  question  arose 
whether  the  second  mortgagee  should  be  entitled  to  the  entire  residue,  or 
whether  the  widow  was  entitled  to  one-third  thereof  during  her  life,  as 
antl  for  her  dower.  Chancellor  Kent  held  that  the  widow  was  entitled  to 
her  dower ;  and  in  delivering  his  judgment  (at  451)  he  remarks,  "  when 
*the  wife  joined  in  the  first  mortgage,  she  only  paiied  with  her  p.^^^ 
right  of  dower  to  the  extent  of  that  mortgage  debt,  and  she  would  •- 
have  been  entitled  to  have  redeemed  the"  mortgage  upon  her  husband's 
Vol.  I.— 36 


198  SOUTH    CAROLINA   EQUITY   REPORTS.  [*254 

death,  for  tlie  sake  of  her  dower,  and  to  reinstate  herseJf  in  all  her 
rights. '^  If  the  wife,  upon  the  death  of  her  husband,  may  redeem  the 
raortarage,  and  thus  reinstate  herself  in  all  her  rights,  it  follows  (I  think) 
that  she  has  the  right  to  have  the  mortgages  paid  out  of  the  personal 
estate.  For  if  she  had  redeemed,  she  would,  against  the  heir,  have  been 
entitled  to  retain  the  land  until  she  had  her  dower  assigned  her,  and  was 
])aid  the  mortgage  debt,  deducting  her  proportion  as  dowress. — 1  Eq.  Ca. 
Ab.  Tit.  ;  Dower  and  Joint.  B.  6  ;  5  J.  Ch.  Rep.  491.  Her  contribu- 
tion to  the  heir  is  one-third  of  the  annual  interest  of  the  mortgage  debt 
during  life  ;  thus  showing  that  the  mortgage  debt,  even  in  her  hands, 
remains  a  charge  upon  the  estate,  and  that  her  dower  is  preferred  to  all 
other  claims  where  she  has  not  renounced  ;  or,  if  she  has  renounced  con- 
ditionally, and  the  condition  can  be  prevented  from  attaching.  If  the 
widow,  in  the  case  before  us,  had  redeemed  the  land  by  paying  off  the 
mortgages,  she  would  have  been  entitled  to  her  dower,  and  also  io  have 
the  mortgages  paid  to  her.  She  would  be  also  entitled  to  have  that  pay- 
ment made  out  of  the  personal  estate ;  for  that  is  the  primary  fund  for 
the  payment  of  the  debts,  and  as  a  mortgage  creditor,  she  could  only,  in 
marshaling  assets,  have  been  compelled  to  exhaust  the  balance  of  the  real 
estate  after  satisfying  her  dower,  before  resorting  to  the  personal  estate. 
That  would  be  unnecessary  to  be  done  ;  for  if  she  was  paid  out  of  the 
personal  estate,  the  other  creditors  would  get  the  balance  of  the  real 
estate  after  satisfying  the  dower,  and  thus  she  could  not  be  asked  to  go 
upon  the  real  estate  to  relieve  the  personal,  as  no  benefit  would  result 
from  such  a  proceeding.  The  effect  of  allowing  her  renunciation  to  be 
taken  advantage  of  by  other  creditors,  so  as  to  exclude  her  from  dower 
altogether,  would  be  to  give  them  an  equity  to  be  paid  out  of  her  dower, 
Tliis  they  have  not.  For,  by  her  renunciation  to  the  mortgagees,  in  the 
language  of  Chancellor  Kent,  "  She  only  parted  with  the  right  of  dower 
to  the  extent  of  the  mortgage  debts."  Allow  it  to  operate  to  bar  her 
dower  when  it  is  not  necessary  that  it  should  have  such  an  effect,  for 
the  satisfaction  of  the  mortgages,  and  it  will  amount  to  an  absolute  and 
unconditional  renunciation,  which  never  was  intended,  and  which  is  there- 
^.-jrr-i  fore  contrary  to  both  law  and  *equity.  In  Hildreth  v.  Jones,  13 
-'  Mass.  Reports,  525,  the  wife  joined  her  husband  in  a  mortgage, 
ard  after  his  death,  in  an  application  to  the  Judge  of  Probate,  she  stated 
that  she  was  barred  of  her  dower  by  the  said  mortgage  deed,  and  prayed 
an  allowance  out  of  the  personal  estate,  which  was  granted.  The  ad- 
ministrator afterwards  paid  the  mortgage — it  was  held  that  she  was  en- 
titled to  her  dower. 

In  Barker  v.  Parker,  17  Mass.  Rep.  564,  the  land  was  mortgaged  by 
husband  and  wife  to  Gerry,  who  assigned  to  Jeffries,  by  whom  the  land 
was  recovered  in  an  action,  and  he  entered  into  the  possession  under  a 
"judgment  of  possession,"  and  so  continued  for  some  time,  until  John 
Henderson,  who  had  been  tenant  under  Barker,  the  original  mortgagor, 
paid  off  the  mortgage  to  Jeffries,  who  released  to  Henderson  his  riiiht. 
Barker's  right  to  redeem  was  sold  under  execution,  and  purchased  by 
Mackay,  who  conveyed  to  others,  by  whom  it  was  conveyed  to  the 
defendants.  It  was  held  that  the  demandant  was  entitled  to  dower.  Mr. 
Justice  Putnam  remarked,  in  delivering  his  judgment,  "If  no  mortgage 
had  been  given,  it  would  be  agreed  on  all  hands  that  the  widow  should 


♦255]  CHARLESTON,    MARCH,    1835.  199 

have  dower.  But  the  mortjyage  having  been  paid  is  to  he  considered  as 
never  having  existed."  This  dictum  presents,  I  think,  the  true  view, 
that  the  mortgage  being  paid,  is  to  be  considered,  so  far  as  the  wife's 
dower  is  concerned,  as  never  having  existed,  and  hence  no  jiretence  can 
be  made  by  which  it  can  be  set  up  as  a  bar  to  the  wife's  right  of  dower. 
Both  the  cases  cited  show  that  payment  is  an  absohite  extinction  of  the 
mortgage,  and  the  first  that  not  even  allowance  out  of  the  personal  estate 
for  maintenance  to  the  wife  on  the  supposition  that  she  was  barred,  could 
keep  alive  and  in  operation  the  wife's  renunciation  of  dower  after  the 
mortgage  had  been  paid  off. 

In  Pixley  v.  Bennet,  11  Mass.  Repts.  298,  the  demandant,  widow  of 
Charles  Pixley,  demanded  her  dower  of  lands  belonging  to  the  husband 
during  coverture  :  the  tenants  pleaded  that  she  had  released  her  dower: 
the  demandant  craved  oyer  of  the  writ,  from  which  it  appeared  that  she 
had  released  to  Truze  and  Edwards.  She  therefore  demurred  to  the 
plea,  and  her  demurrer  was  sustained.  From  this  decision  it  is  apparent 
that  a  renunciation  of  dower  cannot  be  taken  advantage  of  by  any  one 
except  the  parties  or  his  privies,  to  whom  it  is  made.  The  creditors 
could  not,  therefore,  set  up  the  renunciations  of  dower  to  mortgagees,  as 
a  *bar  to  the  wife's  claim  of  dower  out  of  the  land  mortgaged,  r^gcg 
It  was  said  that  the  decree  allowing  the  widow's  dower  did  not  '- 
make  it  a  charge  upon  the  land  specifically,  but  upon  the  estate  generally  ; 
and  Stock  and  Parker,  2  McC.  Ch.  Rep.  376,  was  cited  to  show  that 
this  was  incorrect ;  and  if  it  was,  as  is  supposed  by  the  objection,  there  is 
no  dovdjt  from  that  case  that  it  would  be  so.  But  the  land  is  ordered  to 
be  sold  in  this  case,  and  out  of  its  proceeds  the.  dower  may  be  regarded 
to  be  decreed  to  be  paid  ;  and  as  it  sold  for  a  sura  greatly  beyond  the 
dower,  and  as  no  rights  of  creditors  will  be  changed  thereby,  the  Com- 
missioner, in  paying  the  dower,  will  not  be  in  error  in  paying  it  out  of 
the  funds  generally.  From  this  examination  of  the  question,  I  am  satis- 
fied that  the  decree,  allowing  the  widow  dower  of  the  preuiises  mortgaged 
was  correct,  and  that  the  sum  assessed  in  lieu  of  her  dower  must  l)e  paid 
by  the  Commissioner  out  of  the  proceeds  of  the  sale  of  the  estate  of 
George  Keckley,  deceased,  in  this  case. 

2.  Without  undertaking  to  decide  whether  the  debt  due  to  the  com- 
missioners of  the  poor  be  a  debt  to  the  public,  it  will  be  sufficient  to  say 
that,  conceding  it  to  be  so,  it  is  not  entitled  to  the  preference  claimed. 
According  to  the  report  of  the  Commissioner,  and  in  the  aspect  in  which 
the  claimant  wishes  it  to  be  considered,  this  debt  is  on  a  due-bill  for  a 
balance  due  by  the  deceased  for  poor  tax  received  by  him.  The  other 
debts  are  due  by  mortgages  or  judgments.  The  case  of  the  Commis- 
sioners of  Public  Accounts  v.  Greenwood,  1  Eq.  Rep.  450,  (decided  in 
1795,  and  never  questioned,)  denied  the  general  common  law  jirerogative 
right  of  the  King  to  be  paid  in  preference  to  his  subjects,  to  have  any 
application  to  the  State.  In  the  State  v.  Harris,  2  Bailey,  598,  the  same 
position  was  ruled.  So  that  the  right  of  the  State  to  be  paid  in  pre- 
ference to  other  creditors,  depends  now  altogether  on  the  statute  law. 
Under  the  Act  of  '89,  the  question  is,  what  debts  to  the  pul>lic  are  entitled 
to  be  first  paid.  la  the  State  v.  Harris,  I  said  that  debts  which  are  due 
to  the  State  as  a  "  sovereign,  and  for  the  protection  of  l)oth  the  citizen 
and  property,  are  entitled  to  preference."     This  definition  was  intended 


200  SOUTH    CAROLINA   EQUITY   REPORTS.  [*256 

to  embrace  the  right  of  the  State  to  be  paid  all  taxes  in  preference  to  all 
other  debts.  But  perhaps  the  words  used  in  the  Act  of  1789,  ought  to 
have  a  little  more  extended  meaning,  and  to  be  construed  by  the  common 
law.  In  the  case  of  the  Commissioners  of  Public  Accounts  v.  Green- 
*of;>7i  ^^^^'  ^^^^  Judge  says,  "  But  even  if  the  common  law  prerogative 
-■  *was  retained,  yet  we  are  of  opinion  it  cannot  affect  the  defend- 
ants in  this  case,  because  by  the  common  law,  the  King  was  entitled  to  a 
preference  only  when  the  debt  was  OJi  record  or  sj?ecialty,  in  cases  where 
he  and  the  subject  stood  in  equal  degree.^'  That  the  words  "  debts  due 
to  the  public,"  must  be  construed  to  mean,  that  where  the  intestate  is 
indebted  to  the  State,  and  some  of  the  citizens  in  equal  degree,  that  in 
such  case  the  State  shall  have  the  preference,  is  not  only  apparent  from 
a  construction  of  the  Act  by  the  common  law,  but  the  same  conclusion  is 
obtained  by  looking  to  the  fact  that  any  other  construction  would  divest 
liens  existing  in  the  lifetime  of  the  debtor,  by  judgments,  executions  and 
mortgages. 

It  appears  that  a  judgment  was  obtained  on  the  debt  due  to  the  Com- 
missioners of  the  Poor,  in  the  name  of  John  Robinson  ;  if  that  can  be 
considered  as  judgment  in  favor  of  the  State,  (which  I  much  doubt)  it 
cannot  alter  the  case,  the  Act  of  '89  gives  the  oldest  judgment  the  pre- 
ference, and  as  this  judgment  is  the  youngest,  it  cannot  be  said  to  be  in 
equal  degree  with  the  older  ones.  It  is  a  debt  of  the  same  class,  but  it 
is  not  with  the  others  equally  entitled  to  payment.  The  case  of  Commis- 
sioners of  Public  Accounts  v.  Greenwood,  is,  however,  an  authority  upon 
the  point,  and  it  is  unnecessary  to  look  beyond  it.  I  am,  therefore,  satis- 
fied that  the  Commissioners  of  the  Poor  are  not  entitled  to  the  preference 
claimed. 

It  is  ordered  and  decreed  that  Chancellor  Johnson's  decree  be  affirmed. 

Johnson,  J.,  concurred. 

Harper,  J.,  I  concur  as  the  second  point  decided.  > 


Vernon  &  Co.  v.  The  Executors  of  Peggy  Africana  Ehrich,  and 
Jacob  R.  Talk  and  Wife. 

Lands  in  the  hands  of  the  heir  or  devisee,  are  liable  to  the  debts  of  the  deceased, 
■whether  the  executor  has  assets  or  not  Under  the  stat.  3  &  4  W.  &  M.  the  heir 
and  devisee  may  be  sued  jointly,  and  the  executor  cannot  be  joined  at  law. 
The  heir  or  devisee,  however,  has  an  equity  against  the  executor  to  be  reimbursed 
out  of  the  personal  assets:  and  when  the  creditor  comes  into  equity  to  charge  the 
real  estate,  he  must  make  the  executor  a  party  to  prevent  circuity  of  action, 
thereby  at  once  afibrding  the  heir  or  devisee  relief;  but  where  there  is  no  executor 
or  administrator  and  no  personal  assets  in  the  state,  no  such  party  can  or  need 
be  made.  [*260] 

The  heir  or  devisee  is  not  bound  by  a  iudgment  against  the  executor  or  adminis- 
trator. [*261]  ^     J     o  b 

Quere?  Can  a  bill  against  a  devisee  to  charge  the  devised  estate,  be  sustained 
without  making  the  heir-at-law  a  party?  [*262] 

The  bill  states  that  John  M.  Ehrich,  in  his  life  time,  and  the  plaintiffs, 
were  jointly  engaged  in  New  York,  in  the  shipment  of  hemp  ;  and  that 


*2")7]  CHARLESTON-,    MARCH,    1835.  201 

Ehrich  died  in  1822,  having  first  executed  his  will,  by  which  he  devised 
to  the  defendant,  Mrs.  Yalk,  a  house  and  lot  *in  Charleston,  and  r^oco 
appointed  his  widow,  Peg:2:y  Africana,  his  executrix.  That  pro-  >-  " 
ceeding:s  were  had  in  the  Court  of  Chancery,  in  New  York,  on  the  ])art 
of  these  plaintiffs,  touching  these  shipments  against  Mrs.  Elirich  ;  that 
by  her  answers  she  admitted  assets,  and  that  in  1826,  it  was  tiion  or- 
dered and  decreed  as  follows  :  "  The  master  having  reported  a  balance 
against  the  estate  of  the  said  John  M.  Ehrich,  of  §3528  93,  and  the  said 
Peggy  A.  p]hrich  having,  by  her  answer  heretofore  filed,  admitted  assets, 
it  is  ordered,  adjudged  and  decreed,  that  the  report  of  the  master  lie 
confirmed,  and  that  the  defendant,  Peggy  A.  Ehrich,  pay  to  the  plain- 
tiffs or  their  solicitors,  the  said  sum  of  $3528  93,  so  reported  to  be  due 
to  the  said  plaintiffs."  That,  thereupon,  an  execution  was  issued  and 
returned  nulla  bona.  That  Mrs.  Ehrich  died  in  December,  1832,  having 
by  her  will,  appointed  the  defendants,  E.  Parmley,  L.  Catlin,  and  A. 
Dey,  of  New  York,  her  executors.  That  the  ]iersonal  estate  of  John  M. 
Ehrich  is  exhausted,  and  the  house  and  lot  in  Charleston  devised  to  Mrs. 
Yalk,  is  the  only  resource  to  pay  the  decree.  Prays  an  account  for  the 
rents,  and  satisfaction  of  the  decree,  by  the  sale  of  this  property — and 
general  relief 

Defendants,  Jacob  R.  Yalk  and  wife,  demurred  to  so  much  of  the  said 
bill  as  sets  forth  a  decree  obtained  in  the  Court  of  Chancery,  in  the 
State  of  New  York,  by  the  plaintiffs,  against  Peggy  Africana  Ehrich, 
lately  deceased,  and  seeks  to  have  satisfaction  thereof  by  the  sale  of  the 
house  and  lot  devised  by  the  said  John  M.  Ehrich,  as  in  the  bill  men- 
tioned ;  and  for  cause  of  demurrer  say,  that  these  defendants  were  nei- 
ther party  or  privy  to  the  said  proceedings,  nor  is  the  said  decree  against 
them  or  against  the  property  so  devised  as  aforesaid,  but  against  Peggy 
Africana  Ehrich  individually. 

Defendants  further  demur  to  so  much  of  the  bill  as  states  that  certain 
commercial  transactions  took  place  between  the  late  John  M.  Ehrich,  in 
his  lifetime  and  the  plaintiffs,  in  which  the  said  John  was  sup])osed  to 
have  become  indebted  to  the  said  plaintiffs,  and  seeks  to  recover  the 
amount  of  the  same  from  the  property  in  the  possession  of  these  defend- 
ants ;  and  for  cause  of  demurrer  say,  that  by  the  plaintiffs'  own  showing, 
the  said  John  M.  Ehrich  is  dead,  and  his  executor  or  administrator  is 
not  made  a  party  to  the  said  bill; — and  for  further  cause  of  demurrer, 
these  defendants  say  the  said  Peggy  Africana  Ehrich,  executrix  of  John 
M.  Ehrich,  admitted  that  she  had  assets  of  the  estate  of  her  testator  suf- 
ficient *to  satisfy  his  debts,  and  yet  the  plaintiffs  do  not  show  that  r*.icg 
they  have  pursued  all  proper  means  to  procure  payment  of  their  '- 
supposed  debts,  from  the  fund  so  originally  and  properly  liable,  before  re- 
sorting to  the  real  estate  of  the  said  John  M.  Ehrich  specially  devised  in 
trust  for. this  defendant,  Sarah  Yalk 

The  Chancellor  overruled  the  demurrer. 

The  defendants,  Jacob  R.  Yalk  and  wife,  appeal  on  the  ground,  that 
the  demurrer  should  have  been  sustained  for  the  reasons  therein  stated. 

Dunkin,  for  the  appellants,  contended  that  the  decree  in  New  York  is 
against  the  executrix  personally,  who  became  liable  by  admitting  assets 
to  be  in  her  hands,  and  the  plaintiffs  have  ample  remedy  by  enforcing 


202  SOUTH   CAROLINA   EQUITY    REPORTS.  [*259 

that  decree  against  her  estate.  That  the  property  here  never  was  under 
her  control,  and  that  the  defendants,  Valk  and  wife,  are  in  no  wise  bound 
by  the  New  York  decree  to  which  they  were  not  parties.  That  their 
property  cannot  be  made  liable  until  the  executrix  has  been  pursued  to 
iTisolvency — and  that  there  is  no  party  now  before  the  Court  representing 
Ehrich's  estate ;  for  the  other  defendants,  executors  in  New  York,  are  not 
recognized  as  such  here.  Cited  6  John.  Ch.  Rep.  373;  8  Cranch,  9;  8 
Wheat.  646,  667,  671;  3  John.  Ch.  Rep.  58;   1  M'C.  Ch.  417. 

Petigru,  contra. 

Harper,  J.  The  causes  of  demurrer  set  forth  are,  that  no  executor 
or  administrator  of  John  M.  Ehrich  is  made  a  party  to  the  bill ;  that  the 
ex(  cutrix,  Peggy  Africana  Ehrich,  admitted  assets  of  the  testator,  and 
plaintiffs  do  not  show  that  they  have  pursued  all  proper  means  to  obtain 
payment  of  their  debt  from  those  personal  assets.  To  so  much  of  the 
l>ill  as  sets  forth  the  decree  in  New  York,  the  demurrer  states  that  the 
defendants  were  neither  parties  nor  privies  to  that  decree. 

By  the  common  law,  a  bond  creditor  might  bring  his  action  against  the 
heir  at  law  in  respect  of  real  assets  descended,  and  neither  was  bound  to 
join  nor  could  join  the  executor  in  the  action. 

And  it  was  immaterial  whether  the  executor  had,  or  had  not  assets,  the 
heir  could  not  ])lead  that  the  executor  had  assets  Cora.  Dig  Tit.  Pleader 
E.  2,  But  lands  were  not  liable  in  the  hands  of  a  devisee.  By  the  Stat. 
*2601  3  &  4  W.  &  M.  c.  14,  (P.  L  )  87,  called  *"the  statute  of  fraudu- 
-'  lent  devises,"  an  action  was  allowed  against  the  heir  and  devisee 
jointly,  on  bonds  and  specialties.  This  action  was  of  course  subject  to 
the  same  rules  as  that  against  the  heir  alone.  The  executor  was  not  to 
be  joined,  and  it  was  immaterial  whether  the  executor  had  assets.  Then 
by  the  Stat.  5  Geo.  2,  c.  7,  lands  were  made  liable  for  the  satisfaction  of 
all  debts,  by  simple  contract  as  well  as  by  specialty,  "in  like  manner  as 
real  estates  are  by  the  law  of  England  liable  to  the  satisfaction  of  debts 
due  by  bond  or  other  specialty."  If  this  were  an  action  at  law  then, 
against  the  heir  and  devisee,  it  would  be  no  objection  that  the  executrix 
was  not  joined,  or  that  she  had  assets,  or  that  no  remedy  had  been  pur- 
sued against  her;  but  the  heir  or  devisee  had  au  equity,  if  there  were 
assets  sufficient  to  satisfy  the  debt  in  the  hands  of  the  executor,  to  be 
reimbursed  out  of  those  assets.  When  therefore  it  was  necessary  for  the 
creditor  to  come  into  Equity,  (and  suits  against  the  heir  or  devisee  seera 
to  have  been  more  common  in  equity  than  at  law,)  it  was  requisite  that 
the  executor  should  be  made  a  party;  not  on  the  principle  contended  for 
in  this  case,  that  the  executor  is  the  only  legal  representative  of  the  tes- 
tator and  the  only  proper  person  to  defend  an  action  which  shall  affect 
his  estate,  but  on  the  familiar  equity  rule  of  preventing  circuity  of  action 
by  making  all  persons  interested  parties,  so  that  complete  justice  may  be 
done  at  once.  Now  the  Court  of  Equity  in  all  cases  delights  to  do  com- 
plete justice,  and  not  by  halves,  as  first  to  decree  the  heir  to  perform  this 
covenant,  and  then  to  put  the  heir  upon  another  bill  against  the  executor 
to  reimburse  himself  out  of  the  personal  assets,  which,  for  aught  that 
appears  to  the  contrary,  may  be  more  than  sufficient  to  answer  the  cove- 
nant ;  and  where  the  executor  and  heir  are  both  brought  before  the  Court, 


*260]  CHARLESTON,    MARCH,    1835.  203 

complete  justice  may  be  clone  by  decreeing  the  executor  to  perform  tliis 
covenant  so  far  as  the  personal  assets  will  extend,  the  rest  to  he  made 
good  by  the  heir  out  of  the  real  assets."  Knight  v.  Knight,  3  P.  Wms, 
333.  The  question  in  that  case  was,  whether  the  executor  could  be  made 
a  party.  If  it  were  shown  by  the  bill,  however,  that  there  were  no  assets 
in  the  hands  of  the  executor,  or  that  he  had  been  called  to  account,  and 
the  remedy  against  him  was  exhausted,  the  reason  would  cease,  and  it 
would  be  unnecessary  to  make  him  a  party. 

If  there  were  an  executor  or  administrator  in  this  State  having  assets, 
it  would  be  necessary  to  make  him  a  party,  not  on  the  *ground  r^^.jn-i 
that  he  is  the  only  legal  representative  to  defend  the  estate,  but  '- 
on  the  equity  principle  mentioned.  The  bill,  however,  shows  that  there 
is  no  executor  or  administrator,  and  no  personal  assets  in  the  State  :  of 
course  no  such  party  could  be  made.  It  shows  that  all  the  personal  assets 
went  into  the  hands  of  the  executrix,  Peggy  Africana  Ehrich,  and  her 
executors  are  made  parties.  If  there  had  never  been  any  proceeding  what- 
ever against  the  executrix  or  her  representatives,  here  are  all  the  parties 
that  could  be  made.  There  is  no  analogy  to  our  decided  cases  that  have 
been  relied  on,  as  in  Trescott  v.  Trescott,  1  M'C.  Ch.  417,  that  before  a 
legacy  or  distributive  share  can  be  pursued  by  creditors  in  the  hands  of 
the  legatee  or  distributee,  the  executor  must  be  sued  to  insolvency ;  such 
creditors  never  had  any  direct  right  of  action  against  the  legatee  or  dis- 
tributee, and  their  entire  equity  as  against  them  is  founded  on  the  execu- 
tor's insolvency.  Notwithstanding  our  decisions  that  lands  in  the  hands 
of  the  heir  may  be  sold  by  an  execution  upon  a  judgment  against  the 
executor  or  administrator,  (decisions  which,  however  much  we  may  regret 
them,  have  yet  obtained  too  long,  and  too  many  rights  have  been  vested 
under  them  to  allow  us  to  interfere  with  them,)  yet  I  suppose  an  action 
at  law  might  be  sustained  against  the  heir  alone.  There  is  nothing  iu 
these  decisions  to  forbid  such  an  action.  In  such  action,  the  executor 
neither  would  nor  could  be  joined,  and  it  would  be  immaterial  whether 
there  were  an  executor  or  administrator  in  the  State  or  not.  Coming 
into  equity,  the  creditor  must  conform  to  the  rules  of  equity  and  make  all 
necessary  parties.  This,  it  appears  to  me,  has  been  done.  It  would  be 
mere  mockery  that  a  formal  administration  should  be  taken  out  here 
where  there  are  no  assets,  in  order  that  such  formal  administrator  might 
be  made  a  party. 

I  think  the  ground  of  the  demurrer  is  just  to  that  part  of  the  ))ill  whieli 
states  the  decree  obtained  in  New  York,  and  prays  the  enforcement  of  it. 
The  heir  is  not  bound  by  a  judgment  against  the  executor  or  adminis- 
trator, and  defendants  were  not  parties  or  privies  to  that  decree.  When 
the  heir  is  sued  he  is  to  defend,  and  the  cause  of  action  must  be  estab- 
lished against  him. 

The  bill  however  states  sufficiently  the  original  cause  of  action,  and  in 
addition  to  the  prayer  for  the  enforcement  of  the  decree,  contains  a  prayer 
for  general  relief.  When  a  proper  case  is  made,  though  the  specilic 
relief  prayed  for  cannot  be  granted,  yet,  if  there  be  a  prayer  for  general 
relief,  the  proper  relief  will  be  afforded. 

*When  a  bill  is  against  the  heir  and  executor,  the  decree  is,  that  r*.>/>c> 
the  executor  account  for  the  i)ersonal  assets,  and  that  they  shall  L  ^  -^ 
be  applied  so  far  as  they  will  go,  and  that  the  heir  shall  make  good  the 


204  SOUTH   CAROLINA    EQUITY   REPORTS.  [*262 

deficiency.  The  executors  of  the  executrix  are  out  of  the  jurisdiction, 
and  a  decree  aG:ainst  them  would  probably  be  ineffectual.  I  do  not  say 
that  the  plaintiffs  may  not  be  required  to  institute  further  proceedings  in 
New  York,  calling  those  executors  to  account,  before  a  decree  will  be 
made  in  their  favor  against  the  defendants ;  but  this  has  nothing  to  do 
with  the  questions  made  on  the  demurrer,  and  it  would  be  premature  to 
consider  that  matter  now. 

By  the  Stat.  3  &  4  W.  &  M.  the  action  is  allowed  against  the  heir  and 
devisee  jointly.  The  heir  at  law  of  John  M.  Ehrich  is  not  a  party  to 
this  bill,  and  a  question  may  arise  whether  the  bill  can  be  sustained 
without  making  him  a  party.  This,  however,  is  not  a  ground  of  de- 
murrer, nor  is  the  question  made.  The  demurrer  is  sustained  to  that 
part  of  the  bill  which  states  the  decree  obtained  in  New  York,  and  prays 
the  enforcement  of  it.  In  other  words  it  is  overruled,  and  the  Chan- 
cellor's decree  affirmed. 

Johnson,  J.,  and  O'Neall,  J.,  concurred. 


Bank  of  South  Carolina  vs.   James  Adger. 

A  surety  to  a  custom  house  bond  having  paid  it,  is  not  entitled,  under  the  Acts  of 
Congress  of  '97  and  '99,  to  be  subrogated  to  the  rights  of  the  United  States  as 
against  liis  co-surety,  so  as  to  give  his  demand  for  contribution  a  preference  over 
other  creditors;  nor  on  the  general  principles  of  equity  can  he  claim  to  stand  in 
the  place  of  the  United  States  as  against  the  co-surety.  [*2G6] 

Joint  judgment  against  principal  and  sureties  paid  by  one  of  the  sureties,  will  not 
be  set  up  for  contribution  against  the  co-surety.  [*267] 

On  the  12th  of  September,  1825,  Samuel  H.  Lothrop  made  a  general 
assignment  to  William  Price,  of  all  his  estate,  for  the  payment  of  certain 
preferred  creditors  in  the  first  place,  and  the  surplus  to  his  other  creditors. 
William  Price  died  intestate,  and  administration  of  his  estate  was  com- 
mitted to  the  defendant,  James  Adger.  This  bill  was  filed  for  an  account 
of  the  administration  of  his  estate,  and  an  order  was  made  directing  Mr. 
Gray,  the  Commissioner,  to  take  an  account  of  the  estate  of  William 
Price,  and  also  of  the  estate  of  Samuel  H.  Lothrop,  assigned  to  hira ; 
and  of  the  assets  that  have  come  to  the  hands  of  the  defendant;  and  also 
*263l  ^^  inquire  and  take  an  account  of  the  debts  due  by  *the  said 
-^  William  Price,  at  the  time  of  his  death,  in  his  own  right,  and  as 
assignee.  The  accounts  have  been  taken,  and  it  is  found  that  Price  is 
insolvent,  but  has  left  assets  to  pay  his  bond  creditors ;  and  that  he  is 
indebted  to  the  assigned  estate  of  Lothrop,  in  a  large  sum  on  bond. 
The  preferred  creditors  of  Lothrop  claim  to  be  paid  according  to  his 
assignment,  but  a  claim  is  interposed  by  John  C.  Miller  and  James  A. 
Miller,  assignees  of  Duke  Goodman,  on  the  following  grounds  : — 

Duke  Goodman  and  Samuel  H.  Lothrop  were  the  sureties  of  Joseph 
T.  Weyman,  on  two  custom  house  bonds;  one  bond  dated  2d  May,  1825, 
payable  2d  February,  1826,  conditioned  for  $1332  15,  upon  which  bond 
judgment  was  entered  np  against  Weyman,  Lothrop,  and  Goodman  on 
22d  March,  1826;  and  another  bond  dated  29th  April,  1825,  payable 
29lh  April,  1826,  conditioned  for  $4534  50,  on  which  last  mentioned 


*263J  CHARLESTON,  MARCH,  1835.  205 

bond  jnrlgment  was  had  against  the  principal  and  botli  tlic  surelios,  on 
the  6th  July,  1826. 

In  September,  1826,  the  assignees  of  Goodman  paid  the  amount  of 
these  bonds  to  the  District  Attorney,  who  assigned  to  them  the  judgments 
against  Weyman,  the  principal ;  and  they  now  claim  contribution  from 
the  assets  of  Lothrop  for  one  moiety.  The  assets  of  Weyman  are  ex- 
hausted. On  this  state  of  facts,  His  Honor,  Chancellor  Joliiistou, 
decreed  the  funds  of  Lothrop  to  be  paid  over  to  his  preferred  creditors, 
and  the  assignees  of  Groodman  appeal : — 

1.  Because  the  estates  of  Lothrop  and  Goodman  were  equally  liouiid 
to  pay  these  bonds ;  and  the  United  States  had  a  priority  to  all  other 
creditors.  And  the  accidental  circumstance  that  payment  had  been 
made  by  Goodman's  assignees  before  the  funds  of  Lothrop  were  got 
in,  should  not  be  allowed  to  favor  one  set  of  creditors,  or  disappoint 
another. 

2.  Because  Goodman's  assignees,  by  paying  off  the  debts,  are  entitled 
to  be  substituted  to  the  I'ights  of  the  United  States,  and  to  set  uji  the 
judgments  against  Lothrop  for  the  moiety  which  his  estate  ought  to  have 
paid. 

Petigy-u,  for  the  appellants.  LTpon  the  general  principle  of  marshal- 
ing assets,  the  assignees  of  Goodman  have  a  right  to  payment  of  a  moiety 
of  the  debts  paid  for  Weyman. 


*By  the  5th  section  of  the  Act  of  Congress  of  1707,  (1  Story's 


[*264 


Laws  U.  S.  465,)  when  any  person  indebted  to  the  United  States 
becomes  insolvent,  or  makes  a  voluntary  assignment  to  pay  his  debts,  the 
United  States  shall  have  priority  in  the  payment  of  debts  :  and  the  65th 
section  of  the  Act  of  Congress  of  1799  (1  Story's  Laws  U.  S.  630) 
declares,  that  on  all  bonds  for  duties,  when  the  estate  in  the  hands  of 
executors,  administrators  or  assignees,  shall  be  insufficient  to  pay  all  the 
debts,  the  debt  due  the  United  States  shall  be  first  satisfied  ;  and  if  the 
principal  debtor  be  insolvent,  and  the  sureties  pay  the  bond,  "  then  such 
surety  or  sureties  shall  have  and  enjoy  the  like  priority  and  preference." 
By  the  insolvency  and  consequent  assignment  of  Lothrop,  the  United 
States,  under  the  Acts  of  Congress,  were  entitled  to  priority  over  all  his 
other  creditors — a  right  existing  in  respect  to  all  the  obligors  in  the 
nature  of  a  joint  mortgage.  By  the  payment  of  the  judgments,  the  rights 
of  Goodman  could  not  be  affected — it  was  what  the  law  would  have  com- 
pelled. Nor  can  the  United  States'  Attorney,  by  coercing  ]niyment 
from  Goodman's  assets,  defeat  any  of  his  rights.  It  has  been  shown  that 
the  United  States  had  priority  of  all  Lothrop's  creditors.  On  principles 
of  general  equity,  Goodman,  the  surety,  having  paid  the  debt,  is  entitled 
to  be  remitted  to  all  the  rights  of  the  creditor,  and  to  be  paid  from  Loth- 
rop's estate,  as  if  the  United  States  were  now  claiming. — Aldrich  v. 
Cooper,  8  Ves.  382.  As  to  the  right  of  setting  up  the  judgments, 
Kobinson  v.  Wilson,  1  Mad.  Rep.  567.  Lord  Eldon,  in  Copps  v. 
Middleton,  overruled  this  last  case,  allowing,  however,  that  if  there 
had  been  a  mortgage  as  a  collateral  security,  the  principal  would  have 
been  right;  and  in  this  case,  the  judgment  may  be  set  upon  the  same 
principle. 

Gilchrist  and  Kiiig,  contra.     It  is  not  denied  that  Goodman's  assignees 


206  SOUTH   CAROLINA   EQUITY   REPORTS.  [*264 

are  entitled  to  contribution — the  rank  which  they  are  to  occupy  is  the 
tiuestion.  Against  the  principal  debtor  they  may  I'ank  as  the  United 
States,  but  as  against  the  co-surety,  neither  under  the  Acts  of  Congress, 
nor  by  the  general  principles  of  Equity,  can  they  claim  other  than  as  a 
simple  contract  creditor.  The  preference  under  the  Act  of  Congress 
applies  only  between  the  surety  and  his  principal — it  has  no  application 
between  co-sureties,  and  it  has  been  so  ruled.  Pollock  v.  Pratt  &  Haney, 
2  Wash.  C.  C.  Rep.  490.  Nor  will  the  equity  doctrine  of  subroga- 
*0APii  tion*  apply.  Noonan  v.  Gray,  1  Bail.  437  ;  Stat.  Eq.  Rep.  91 ; 
^^^^  Coppsu  Middleton,  1  T.  &  Russ.  224;  10  John.  Rep.  549. 
Aldrich  v.  Cooper  does  not  apply  to  this  case.  This  is  not  a  case  of  a 
creditor  having  two  funds  from  which  to  be  paid,  and  where  he  might  be 
compelled  to  take  one  so  as  not  to  prejudice  other  creditors ;  this  is  a 
claim  to  priority. 

O'Neall,  J.  By  the  5th  section  of  the  Act  of  Congress  of  1197,  (1 
Story  Laws  of  the  U.  States,  465,)  it  is  provided,  "  that  where  any 
revenue  ofificei*,  or  other  person,  hereafter  becoming  indebted  to  the 
United  States,  by  bond  or  otherwise,  shall  become  insolvent,  or  where 
the  estate  of  any  deceased  debtor,  in  the  hands  of  executors  or  adminis- 
trators, shall  be  insufficient  to  pay  all  the  debts  due  from  the  deceased, 
the  debt  due  to  the  United  States  shall  be  first  satisfied  ;  and  the  priority 
hereby  established  shall  be  deemed  to  extend,  as  well  to  cases  in  which  a 
debtor  not  leaving  sufficient  property  to  pay  all  his  debts,  shall  make  a 
voluntary  assignment  thereof,  or  in  which  the  estate  and  effects  of  an 
absconding,  concealed  or  absent  debtor  shall  be  attached  by  process  of 
law,  as  to  cases  in  which  an  act  of  legal  bankruptcy  shall  be  committed." 

The  65th  section  of  the  Act  of  1799,  (1  Story's  Law  of  the  U.  S.  630,) 
after  directing  a  suit  to  be  brought  on  any  bond  for  duties  which  may 
not  be  paid  on  the  day  on  which  it  becomes  due,  directs  that  "  in  all 
cases  of  insolvency,  or  where  any  estate  in  the  hands  of  executors,  admin- 
istrators or  assignees,  shall  be  insufficient  to  pay  all  the  debts  due  from 
the  deceased,  the  debt  or  debts  due  to  the  United  States  on  any  such 
bond  or  bonds  shall  be  first  satisfied. "  The  proviso  declares,  that  if  the 
principal  be  insolvent,  or  if  he  be  dead,  and  his  estate  be  insufficient  to 
pay  all  his  debts,  and  the  surety  or  his  representatives  shall  pay  the 
money  due  on  such  bonds  to  the  United  States,  then  that  the  said  surety 
or  his  representatives  "  shall  have  and  enjoy  the  title,  advantage,  priority 
or  preference  for  the  recovery  and  receipt  of  the  said  moneys  out  of  the 
estate  and  effects  of  such  insolvent  or  deceased  jjrincipal,  as  are  reserved 
and  secured  to  the  United  States. 

Under  these  two  acts,  the  United  States  were  entitled  to  be  preferred 
and  first  satisfied  out  of  the  estates  and  effects  of  Weyman.  Goodman 
and  Lothrop,  under  the  last  act,  the  security  paying  the  debt,  would  be 
entitled  to  be  preferred  and  first  satisfied  out  of  the  estate  and  eSects  of 
the  insolvent  principal. 

*266l  ^^^^^  it  is  perfectly  clear  that  it  does  not  give  to  him  the  prefer- 
ence of  the  United  States  to  be  paid  out  of  the  estate  of  his  co- 
security.  The  case  of  Pollock  v.  Pratt  &  Haney,  2  Wash.  Cir.  Court 
Rep.  490,  is  a  direct  authority  upon  the  point.  Judge  Washington 
said,  "  In  regard  to  the  advantages  reserved  to  the  surety  in  the  custom- 


*266]  CHARLESTON,   MARCH,    1835.  207 

house  bond,  the  provisions  are  confined  to  the  estate  and  effects  of  his 
insolvent  or  deceased  principal.''^  In  that  case  the  claim  was  by  the 
surety  against  the  assignees  of  one  of  the  assignees  of  an  insolvent  ])rin- 
cipal  ill  a  custom-house  bond,  who  had  received  a  large  sum  of  his 
assignor's  estate,  mingled  it  with  his  own,  and  then  became  insolvent  and 
assigned  to  the  defendants.  Under  such  circumstances.  Judge  Wash- 
ington ruled  that  the  plaintiff  was  not  entitled  to  be  preferred,  and  used 
the  words  which  I  have  quoted.  If  in  such  a  case  the  plaintiff  was  not 
entitled  to  be  substituted  in  the  place  of  the  United  States,  it  would 
seem  to  follow  pretty  clearly,  that  the  claim  of  the  co-surety,  Goodman's 
assignees,  to  be  substituted  iu  the  place  of  the  United  States,  against  the 
administrator  of  William  Price,  the  assignee  of  Lothrop,  the  co-surety, 
cannot  be  allowed  to  prevail.  For  here  as  well  as  there,  it  may  be  said 
that  the  provisions  of  the  act  of  Congress  do  not  cover  the  case  made. 

But  it  is  said,  concede  this  to  be  true,  and  still  the  assignees  of  Good- 
man, on  the  general  principles  of  Equity,  have  the  right  to  stand  in  the 
place  of  the  United  States,  and  tne  case  of  Aldrich  v.  Cooper,  8  Ves. 
381,  was  cited  and  relied  upon  in  support  of  that  position  ;  but  I  think 
it  does  not  sustain  it.  This  is  not  a  case  of  a  party  having  two  funds ; 
and  therefore  the  equity  rule  laid  down  in  Aldrich  v.  Cooper,  that  in 
such  a  case  a  party  shall  not  by  his  election  disappoint  the  party  having 
only  one  fund,  cannot  apply.  By  the  custom-house  bond,  the  United 
States  had  the  right  to  expect  ])ayment  from  any  one  of  the  three  obli- 
gors, Weyman,  Goodman  or  Lothrop.  But  they  could  not  be  forced  by 
Goodman  to  accept  his  part  of  the  bond,  and  look  to  Lothrop  for  the 
balance.  It  was  an  entire  debt  due  by  all  or  either  of  the  obligors. 
Payment  of  it  by  one  of  the  co-sureties  entitled  him  to  contribution  as 
for  so  much  money  paid,  laid  out  and  expended  ;  and  the  debt  thus  due 
to  him  by  his  co-surety,  is  a  mere  simple  contract.  This  was  ruled  by 
Lord  Chancellor  Eldon,  in  Copps  (;.  Middleton,  1  T.  &  Buss.  224.  _  In 
that  case,  the  Lord  Chancellor  stated  the  conclusion,  which  is,  I  think, 
directly  applicable  to  this  He  said,  "  there  has  been  a  case  cited,  where, 
upon  the  ^general  ground  that  a  surety  is  entitled  to  the  benefit  of  r^QgY 
all  securities  which  the  creditor  has  against  the  principal,  it  seems  '- 
to  have  been  thought  that  the  surety  was  entitled  to  be,  as  it  were,  a  bond 
creditor  by  virtue  of  the  bond.  I  take  it  to  be  exceedingly  clear,  if  at 
the  time  a  bond  is  given  a  mortgage  is  also  made  for  securing  the  debt, 
that  the  surety,  if  he  pays  the  bond,  has  a  right  to  stand  in  the  place  of 
the  mortgagee,  and  as  the  mortgagor  cannot  get  back  his  estate  again 
without  a  conveyance,  that  security  remains  a  valid  and  effectual  security, 
notwithstanding  the  bond  debt  is  paid;  \mt  if  there  is  nothing  but  the 
bond,  my  motion  is,  that  as  the  law  says  that  the  bond  is  discharged  by 
the  j^ayment  of  what  was  due  upon  it,  the  bond  is  gone  and  cannot 
be  set  up."  The  bond  to  the  United  States  was  paid  by  Godman's 
assignees;  in  the  language  of  Lord  Eldon,  "it  is  gone  and  cannot  be  set 
up."  If  the  bond  is  gone,  it  follows  that  the  preference  given  to  the 
United  States  to  be  first  paid  and  satisfied  out  of  the  estates  ami  effects 
of  all  the  obligors  is  also  gone.  The  surety  has  none  of  the  rights  of 
preference  of  the  United  States,  except  as  against  the  ]n'incipal.  The 
same  reasoning  applies  to  the  judgment  which  was  a  joint  debt  against 
Weyman,  Lothrop  and  Goodman,     Satisfaction  of  it  by  any  one  of  the 


208  SOUTH   CAROLINA   EQUITY   REPORTS.  [*267 

parties,  was  a  satisfaction  of  it  against  tbem  all ;  the  law,  without  any 
further  act  to  be  done,  ended  its  legal  operation.  If  there  had  been 
separate  judgments  against  each  of  the  obligors,  then  it  might  have  been 
that  the  satisfaction  of  one  of  the  judgments  against  one  of  the  sureties 
liy  himself,  would  not  have  been  necessarily  a  satisfaction  of  all  the 
other  judgments,  unless  it  was  so  intended  by  the  surety  making  the 
payment. 

It  is  ordered  and  decreed,  that  Chancellor  Johnston's  decree  be 
affirmed,  (a) 

JoHNSOxX,  J.,  concurred. 


Francis  Thackum  and  "Wife,  and  others,  v.  Joseph  Longwortii. 

How  far  the  Court  will  interfere  to  prevent  the  negotiation  by  an  executor  or  ad- 
ministrator, of  notes  or  bonds  taken  by  him  on  sale  of  the  deceased's  effects. 
[*274] 

An  executor  being  indebted  to  the  defendant  the  executor  of  another  estate,  by 
bond  secured  by  mortgage,  while  solvent,  transferred  to  the  defendant  in  payment 
of  his  own  debt,  bonds  taken  on  a  sale  of  his  testator's  estate,  and  defendant  gave 
up  his  bond  and  mortgage,  and  paid  over  his  money  to  the  legatees.  The  ex- 
ecutor became  insolvent,  and  on  a  bill  by  the  legatees  of  his  testator,  it  was  held 
that  the  defendant  was  not  liable  for  the  money  received  by  him  on  the  bonds — 
the  equities  being  equal  the  law  must  prevail.  [*275] 

The  following  brief  of  the  appellant's  counsel  is  the  only  statement  of 
the  case  which  the  reporter  can  present : — 

The  bill  states  that  Thomas  Milliken  died  in  the  year  1719,  having 
jcopo-i  *previously  executed  his  will,  in  which  he  appointed  John  M'Nish 
-'  his  executor,  and  by  which,  after  the  death  or  marriage  of  his 
widow,  he  bequeathed  all  his  estate  to  the  plaintiffs — that  N'Nish  quali- 
fied, and  in  1819  sold  all  the  estate  of  his  testator  on  credit,  and  took 
bonds  for  the  purchase  money — among  others,  one  of  James  Cole  for 
$900,  one  of  Pearson  Hardie  for  $850,  and  one  of  Isaac  Hardie  for  $600. 
That  the  plaintiffs,  being  young,  did  not  for  a  long  time  look  after  their 
rights;  and  in  the  mean  time  the  executor,  being  deeply  involved,  wasted 
the  estate  and  became  insolvent.  That  he  entered  into  a  negotiation 
with  the  defendant,  Joseph  Longworth,  who  well  knew  his  situation,  for 
the  purchase  of  a  plantation  called  Stock  Farm  ;  and  that  Longworth, 
knowing  the  said  bonds  to  be  of  the  assets  of  the  estate  of  Milliken,  sold 
plantation  to  M'Nish,  and  took  the  bonds  in  payment  and  applied  them 
to  his  own  use — that  M'Nish  is  totally  insolvent,  and  the  plaintifi's  have 
not  received  one  cent  of  their  father's  estate.  The  bill  prays  that  Joseph 
Longworth  may  account  to  them  for  the  money  so  received. 

The  answer  of  Joseph  Longworth  states,  that  as  executor  of  his 
brother,  Archibald  Longworth,  he  sold  to  John  M'Nish,  in  the  year 
1818,  the  plantation  mentioned  in  the  bill,  for  $7500,  and  received  in 
cash  one-third  of  the  purchase  money,  and  took  the  bonds  of  M'Nish, 
payable  in  1819  and  1820,  with  a  mortgage  of  the  premises,  for  the 
residue.     That  M'Nish  afterwards  paid  $2000,  and  he  considered  the 

(a)  See  Perkins  v.  Kershaw,  1  Hill's  Ch.  o51. 


*268]  CHARLESTON,    MARCH,    1835.  209 

debt  amply  secured  by  the  raortgap;e.  That  in  1820,  M'Xish  offered  the 
defendant  the  bonds  of  Cole  and  Hardie,  in  payment  of  his  own,  which 
he  refused.  That  M'Nisli  then  requested  him  to  collect  them  fur  him, 
which  he  agreed  to  do,  and  M'Xish  delivered  them  to  him  endorsed  in 
blank,  and  the  defendant  gave  him  a  receipt  for  them,  stating  that  he, 
had  received  them  for  collection.  That  he  called  on  the  parties  and 
received  the  money  due  thereon,  which  he  considered  himself  as  holding 
for  M'Xish,  and  offered  to  pay  it  to  him,  but  M'Xish  i-equested  him  to 
credit  his  bond  with  it,  which  he  accordingly  did,  upon  which  M'Xish 
gave  him  a  paper,  which  he  has  unfortunately  not  kept,  in  the  following 
terms : — 

Received,  29th  January,  1823,  of  Joseph  Longworth,  $2800.17,  being 
the  amount  collected  by  him  for  me,  from  Messrs.  Hardie  and  Cole,  on 
account  of  the  estate  of  Thomas  Milliken. 

(Signed)  J.  M'Xisii,  Ex'or. 

*He  denies  that  he  knew  the  situation  of  the  estate,  or  that  r:^.^/.Q 
M'Xish  had  no  right  to  pay  him  the  money.  That  he  did  not  con-  '- 
sider  the  money  his  until  his  settlement  and  accounting  with  M'X^ish  as 
aforesaid.  That  M'X^ish  afterwards  paid  him  the  balance  due,  and  he 
gave  him  up  his  bond  and  mortgage  to  be  cancelled.  That  M'Xish  was 
then  in  good  credit,  and  continued  so  till  1827,  when  his  property  was 
sold  by  the  sheriff;  and  he  believes  it  would  then  have  paid  his  del)ts,  if 
it  had  not  been  bought  up  by  his  friends.  That  the  farm  was  bought  at 
this  sale  for  $800,  and  a  part  sold  soon  after  for  $2500,  and  the  negroes 
sold  for  $100  per  head.  That  in  1825  the  plaintiffs  sued  M'Xish,  and  by 
diligently  prosecuting  their  suit,  might  have  recovered  their  money — and 
that  the  defendant  was  never  called  on  by  the  plaintiffs  to  account  to 
them,  or  had  notice  of  their  claims  till  the  filing  of  this  bill. 

In  January,  1833,  the  cause  came  on  before  Mr.  Justice  Harper,  sit- 
ting for  Chancellor  De  Saussure. 

John  M'Xish,  sworn  on  the  part  of  the  plaintiffs,  says  : — Longworth 
was  pretty  hard  on  me  for  the  money  I  owed  him — wrote  to  me  several 
times  [some  of  the  letters  produced] — I  went  to  him  and  asked  him  to 
take  the  bonds,  as  he  was  more  in  the  habit  of  collecting  than  I  was,  and 
if  he  could  collect  the  money  before  I  could  pay  him,  he  should  have  it. 
I  took  a  receipt  for  them.  I  gave  him  a  receipt  for  the  money  just  be- 
fore the  last  Court,  as  a  memorandum  of  the  settlement  which  took  place 
in  1823.  I  have  not  the  receipt  which  Mr.  Longworth  gave  me  ;  the 
purport  was  that  he  had  received  the  bonds,  and  when  collected  would  ac- 
count to  me  for  them.  The  debt  to  Longworth  was  for  a  plantation  of 
the  estate  of  Archibald  Longworth,  at  the  price  of  $7000  ;  the  stock  was 
$500  more,— $2500  were  paid  at  one  time,  $2000  at  another.  Tiie 
money  received  on  account  of  these  bonds  was  $2800.  I  sold  negroes  to 
Col.  Martin  to  pay  the  residue,  and  he  took  up  the  b.md  and  mortgage, 
which  are  now  in  his  hands.  I  proposed  to  Mr.  Longworth  to  collect 
the  lionds  and  account  to  me  for  them,  and  had  no  idea  of  insolvency  at 
this  time  ;  and  I  believe  Longworth  thought  the  debt  well  secured.  He 
said  his  brother's  estate  wanted  the  money.  My  settlement-  with  him 
was  after  May,  1823.  My  insolvency  is  to  be  dated  from  1824  or  1825, 
by  the  loss  of  crops  by  caterpillars.  My  negroes  were  all  sold  in  1826  or 
1827,  except  those  I  sold  to  Col.  Martin — at  the  time  of  the  transaction 


210  SOUTH   CAROLINA   EQUITY   REPORTS.  [*269 

♦o'rni  ^'^^^^  *Longworth,  I  paid  taxes  for  forty  or  fifty,  probably  more. 
'''"-'  The  plantation  sold  at  sheriff's  sale  for  $800. 

Sundry  executions  in  the  sheriff's  oflBce  against  M'Nish  were  given  in 
evidence. 

His  Honor  decreed  that  the  defendant  should  account  for  the  $2800 
received  by  him,  with  interest. 

From  this  decree  the  defendant  appealed,  and  now  moves  to  reverse 
the  same. 

Petigru,  for  the  appellant,  argued,  that  the  conduct  of  the  defendant 
was  free  from  artifice  or  design.  He,  too,  was  an  executor,  acting  not 
for  his  own,  but  the  benefit  of  others.  The  money  was  due  to  him  as 
such,  it  was  amply  secured.  In  the  first  instance  he  acted  as  the  naked 
agent  of  M'Nish,  in  collecting  the  money  on  these  bonds,  and  after  col- 
lection, while  he  was  still  in  good  credit,  and  the  affairs  of  Milliken's 
estate  unknown  to  him,  he  had  a  settlement  with  M'Nish,  in  which  he 
gives  up  the  security  he  had,  on  receiving  the  money  collected,  and  has 
since  paid  it  over.  The  complaint  really  is,  that  the  defendant  has  been 
more  diligent  in  obtaining  money  than  the  plaintiffs.  The  law  favors 
the  vigilant — every  one  who  collects  money  from  a  man  in  failing  circum- 
stances, may  be  said  to  get  another's  money ;  nor  can  it  be  material 
whether  in  receiving  payment  of  a  just  debt,  if  it  be  paid  by  the  executor 
with  his  own  money,  or  with  money  over  which  he  has  a  legal  control. 
Some  one  must  lose.  Shall  it  be  the  defendant  or  the  plaintiffs  ?  There 
may  be  great  hardship  on  their  part,  but  equal  hardship  on  that  of  the 
defendant.  The  equities  are  at  least  equal,  and  in  such  case  the  law  must 
prevail. 

Under  the  circumstances,  can  the  plaintiffs  follow  these  funds  ?  Whose 
were  they  ?  In  law,  beyond  all  question,  they  were  M'Nish's  ;  if  he  had 
died,  the  bonds  would  have  been  his  assets.  Seabrook  v.  Williams,  3 
M'C.  371.  Suppose  he  had  been  sued  by  the  defendant,  and  arrested  on 
a  ca.  sa.,  and  the  ca.  sa.  paid  by  these  funds,  could  he  have  been  detained 
in  custody,  although  it  might  be  known  that  they  were  Milliken's  funds  ? 
The  defendant  is  chargeable,  if  at  all,  for  having  collected  the  money  on 
these  bonds  and  applied  it  to  M'Nish's  debt,  knowing  it  to  be  the  funds 
of  Milliken's  estate;  but  there  is  no  case  to  be  found  in  which  money  has 
been  followed  into  the  hands  of  a  bona  fide  creditor,  nor  any  principle 
5^c,y, -,  on  which  a  creditor  can  be  called  on  to  refund  *money  received  in 
-^  payment  of  a  just  debt,  without  fraud.  He  reviewed  and  com- 
mented on  the  cases  cited  by  the  plaintiff's  counsel,  and  thence  insisted 
that  the  extent  of  the  rule  on  the  subject  is, — that  if  one  by  fraud  or  col- 
lusion with  the  executor,  obtain  the  assets,  or  the  payment  of  a  desperate 
debt  of  the  executor,  relief  will  be  granted — and  that  the  facts  of  this 
case  did  not  show  such  fraud  or  collusion  to  justify  the  application  of 
this  principle. — Cited  Taner  v  Ivie,  2  Yes.  sen.  466,  Ewer  v.  Corbett, 
2  P.  W.  148;  Nugent  u.  Gifford,  1  Atk.  463;  Elliot  v.  Merriman,  2 
Atk.  41. 

Elmore,  contra.  The  first  question  is,  did  Longvvorth  receive  the 
bonds  on  a  mere  naked  trust  to  collect  the  money,  or  to  collect  and  apply 
to  his  debt.  Although  he  states  in  his  answer  that  he  received  them 
merely  in  trust  to  collect  and  pay  over,  that  he  did  not,  will  be  seen  from 


*271]  ''     CHARLESTON-,   MARCH,    1835.  211 

the  circumstances.  The  bonds  are  endorsed  in  blank  by  M'Xish,  shew- 
ing an  absohite  transfer  lu  his  letters  to  M'Nish,  he  speaks  uf  having 
received  money  on  these  bonds,  as  applicable  to  INI'Nish's  bond  to  him- 
self. From  the  evidence  of  M'Nish  and  the  statement  of  the  settlements, 
it  appears  that  the  defendant  had  actually  given  M'Nish  credit  on  his 
bond  for  the  amount  of  the  bonds  of  Milliken's  estate,  a  year  before  the 
final  settlement  in  1823,  when  he  got  M'Nish's  receipt.  [He  here  went 
into  a  detailed  statement  of  the  dealings  of  these  parties  to  show  this 
fact.]  Lastly,  the  explicit  evidence  of  M'Nish,  that  the  understanding 
under  which  the  bonds  were  delivered  to  him  was,  that  the  money,  when 
collected,  should  be  applied  to  his  bond,  if  it  was  not  paid  sooner.  Be- 
sides, it  is  not  a  little  remarkable  that  he  should  gratuitously  undertake 
the  trouble  of  collecting  these  bonds,  as  the  mere  naked  agent  of  M'Nish, 
expecting  to  derive  no  benefit  from  them.  There  cannot  be  a  doubt  that 
he  received  these  bonds  with  the  understanding  and  intention  of  further 
securing  his  debt — to  be  applied  to  its  payment,  and  not  merely  to  col- 
lect. But  conceding  that  he  received  them  merely  as  agent  of  M'Nish, 
the  result  must  be  same.  He  knew  they  were  assets  of  Milliken's  estate, 
and  applied  them  to  his  own  use  in  fraud  of  the  legatees, 

Had  M'Nish  the  right  to  sell  these  bonds?  It  is  of  great  consequence 
that  the  question  be  clearly  settled,  how  far  an  executor  or  administrator 
may  dispose  of  the  equitable  assets  of  the  estate.  *The  English  rj^^otrn 
law  allows  greater  control  to  executors  than  ours.  The  Act  of  '-  *" 
'89,  (2  Brev.  Dig.  95,)  restricts  their  rights.  It  declares,  "  that  when  it 
shall  be  requisite  to  make  sale  of  any  part  of  the  personal  estate,  (for 
any  purpose,)  application  shall  be  made  to  the  Court  of  Ordinary;" 
which  Court  may  "  refuse  or  grant  such  order  for  sale,  regulating  the 
time,  place  and  credit  to  be  given,  (Why?)  so  as  to  do  impartial  justice 
to  all  persons  interested  therein,''  And  when  the  will  gives  the  power  to 
sell — a  mere  naked  power — it  may  well  be  doubted  whether  it  is  still  not 
necessary  to  obtain  an  order  regulating  the  important  requisites  of  "  time, 
place  and  credit,"  so  as  to  do  "  impartial  justice  to  all  concerned." 
Such  was  clearly  the  leaning  of  the  Court,  in  Saxon  v.  Barksdale  4  Eq, 
Rep.  528.  The  will  gives  the  executors  the  right  to  sell  such  property 
as  "they  may  think  proper,  and  to  purchase  such  property  as  they  shall 
judge  beneficial."  The  authority  is  to  both  executors — one  only  trans- 
ferred the  bond,  although  two  were  acting ;  one  acting  under  authority, 
can  only  bind  to  the  extent  of  his  authority,  5  T.  R.  606.  If  tlie  de- 
fendant knew  that  under  the  will,  M'Nish  had  power  to  disi)ose  of  the 
funds,  he  also  knew  the  purpose  for  which  they  were  to  be  disi)()sed  of; 
and  by  taking  the  funds  into  his  own  hands,  he  becomes  himself  the 
trustee..    2  Eq.  Rep.  378-9. 

Had  the  defendant  notice  at  the  time  of  the  transfer,  that  these  bonds 
were  assets  of  Milliken's  estate  ?  He  swears  in  his  answer  that  he  had 
no  notice,  except  that  the  bonds  on  their  face  were  payable  to  M'Nish  as 
executor.  This  however  is  explicit  notice,  and  supposing  it  were  not,  it 
was  sufficient  to  put  him  on  the  iniiuiry.  When  defendant  might,  l)y  dili- 
gence, have  had  notice,  plea  of  want  of  notice  shall  not  avail  him. — 
Jackson  &  Wife  v.  Row,  2  Sim  &  Stuart,  412;  Smith  v.  Ldw,  1  Atk. 
490;  Allen  &  Anthony,  1  Mer.  282;  Daniels  t;.  Davidson,  16  Yes  219; 
Powell  V.  Dillon,  2  Ball  &  Beatt}',  416,     The  bonds  pointed  the  defend- 


212  SOUTH   CAROLINA   EQUITY   REPORTS.  [*272 

ant  to  the  Ordinary's  office,  where  he  would  have  learned — from  the  will, 
the  petition  of  sale  and  the  accounts  of  the  executor — that  the  executor 
was  always  in  arrears — that  these  bonds,  by  a  special  provision  of  the 
will,  were  the  property  of  these  plaintiffs.  In  Saxon  v.  Barksdale,  4  Eq. 
Rep.  528,  and  Franklin  v.  Creyon,  Harp.  Eq.  Rep.  251,  it  was  held, 
that  the  record  of  a  will  is  notice  of  its  contents  to  all  the  world;  and 
by  the  same  reasons,  records  of  petitions,  orders  for  sale,  and  executors' 
^ohq-i  accounts  in  the  Ordinary's  ^office,  are  equally  notices  of  their  con- 
*"  -I  tents.  Long-worth  was  living  in  the  neighborhood,  had  access  to 
these  sources  of  information,  and  it  is  hardly  credible  that  he  had  not 
full  notice  of  all  the  facts. 

What  is  the  effect  of  notice  to  the  defendant  ?  Lord  Hardwicke  says, 
in  Mead  u  Orrery,  3  Atk.  238,  "If  one  will  purchase  with  notice  of 
another's  rights,  he  throws  away  his  money."  It  is  settled  in  the  English 
authorities,  that  where  the  assignment  or  pledge  is  for  advances  made  to 
an  executor  or  administrator  at  the  time,  it  will  be  supported,  unless  it 
be  apparent  that  it  was  upon  collusion  and  not  for  the  benefit  of  the 
estate.  "  It  is  prima  facie  good,  being  presumed  that  the  advance  is  to 
enable  the  executor  to  pay  the  debts." — M'Leod  v.  Drumraond,  17  Yes. 
154.  Here  there  was  no  advance,  but  the  bonds  were  assigned  to  be 
collected  and  applied  to  M'Nish's  antecedent  debt.  "  This  is  very  mate- 
rial," says  Lord  Eldon,  in  M'Leod  xi.  Drummond.  Longworth  well 
knew  that  the  funds  were  not  to  be  applied  to  any  of  the  trusts  of  the 
will,  and  this,  Lord  Eldon,  in  the  same  case,  considers  one  of  the  strongest 
proofs  of  "fraud  and  collusion."  If  one  concerts  with  an  executor  to 
obtain  the  testator's  effects  and  apply  them  to  his  own  behoof,  or  in  ex- 
tinguishment of  the  private  debt  of  the  executor,  or  in  any  way  contrary 
to  the  duty  of  the  executor,  such  concert  will  involve  the  seeming  pur- 
chaser and  make  him  liable. — Scott  i'.  Tyler,  2  Bro.  Ch.  Rep.  431 ;  see 
also  2  Vern.  444;  1  Bro.  Pari.  Ca.  11.  And  in  Downes  v.  Power,  2 
Ball  and  Beatty,  491,  it  is  said,  "Whoever  deals  with  an  executor  for 
assets  for  a  purpose  inconsistent  with  due  administration,  subjects  himself 
to  a  devastavit.  See  also  Hill  v.  Simpson,  7  Ves.  152  ;  Bonney  v.  Rid- 
gard,  1  Cox's  Ch.  145;  Field  v.  Schieflin,  7  John.  Ch.  Rep.  150,  to  the 
same  effect.  The  whole  doctrine  is  strongly  and  concisely  stated  by 
Mr.  Eden,  in  his  note  to  the  case  of  Andrew  v.  Wrigley,  4  Bro.  C. 
R.  137. 

It  is  urged  that  the  equities  are  equal ;  and  that  being  the  case,  the 
law  must  prevail.  They  are  not  equal.  The  plaintiffs  were  infants, 
ignorant  of  their  rights  and  confiding  in  their  father's  executor.  The 
defendants  knowing  these  funds  to  be  theirs,  concerts  with  him  to  mis- 
apply them.  If  he  should  sustain  loss,  it  will  be  from  his  own  wrongful 
ai)propriation  of  funds  he  knew  to  be  of  right  the  plaintiffs'.  Nor  is  he 
so  free  from  "  artifice  and  design,"  as  he  is  represented.  Why  take  a 
receipt  lately,  dated  back  in  1828?  To  supply  the  one  which  he  lost? 
M'Nish  says  he  gave  none  then. 

*274l       O'Neill,  J.*     This  case  for  the  first  time  presents  to  this  Court 
the  question,  how  far  it  can  interfere  to  prevent  the  negotiation 
by  an  executor  or  administrator,  of  notes  or  bonds  taken  by  him  for  the 
proceeds  of  the  sale  of  the  goods  of  the  deceased. 


*274]  CHARLESTON,  MARCH,  1835.  213 

In  sucli  choses  in  action  he  has  a  clear  legal  right  of  property,  inde- 
pendent of  his  character  as  executor  or  administrator.  For  at  his  death 
they  do  not,  by  operation  of  law,  pass  to  the  administrator  de  bonis  non 
of  the  testator  or  first  intestate,  but  are,  in  point  of  law,  the  property  of 
the  deceased  executor  or  administrator,  and  his  administrator  can  alone 
maintain  an  action  for  their  recovery,  Seabrook  ads.  Williams,  3  M"C. 
371.  It  is  true  that  the  proceeds  of  such  choses  in  action  are  in  Equity 
regarded  as  assets,  and  will  be  so  treated  and  considered  in  the  hands  of 
the  executor  or  administrator  to  whom  they  were  made  payable,  or  any 
of  his  immediate  representatives.  Miller  v.  Alexander,  1  Hill's  Ch. 
Rep.  25;  Capehart  and  wife  i'.  The  Administrators  of  Huey. — 1  Hill's 
Ch.  Rep.  405.  So,  too,  in  all  such  cases,  they  would  be  protected  from 
being  made  liable  by  the  process  of  law,  for  the  debts  of  the  executor 
or  administrator. — Glassy.  Baxter,  4  Sep.  154;  Tolbert  i;.  Harrison,  I 
Bail.  599  ;  and  in  all  cases  of  fraudulent  alienations,  the  Court  would 
follow  and  treat  them  as  assets  of  the  estate.  But  beyond  this  I  am  not 
prepared  to  go.  For  generally  speaking,  an  alienee  would  have  a  clear 
legal  estate  in  the  chose  in  action  to  which,  (unless  it  can  be  overreached 
by  a  superior  equity,  or  be  shown  to  be  defeated  by  fraud,)  a  Court  of 
Equity  as  well  as  a  Court  of  law,  is  bound  to  give  effect.  If  the  equity 
of  the  alienee  and  that  of  the  creditor,  legatee  or  distributee,  be  equal, 
the  legal  estate  must  prevail.  I  have  looked  through  the  cases  referred 
to  in  the  decree  and  in  the  argument  with  as  much  care  as  I  could,  and  I 
concede  that  they  sustain  the  position  that  an  alienation  by  an  executor 
or  administrator  of  chattels  or  choses  in  action  belonging  to  the  testator 
or  intestate,  in  his  lifetime,  for  the  payment  of  the  debt  of  the  executor  or 
administrator,  would  not  in  Equity  f/eneraUy  be  allowed  to  prevail 
against  creditors,  legatees  or  distriljutees  — Scott  v.  Tyler,  2  B.  C.  R. 
431  ;  Andrew  v.  Wrigley,  4  B.  C.  R.  124;  Bonney  v.  Ridgard,  1  Cox's 
Ch.  Rip,  145;  Hill  v.  Simpson,  7  Yes.  152;  M'Leod  l\  Drummond,  14 
Ves.  352,  and  17  Ves.  152;  Field  v.  Sehieflin,  7  John.  Ch.  Rep.  150; 
Saxon  V.  Barksdale,  4  Eq.  Rep.  522.  All  of  these  cases,  in  which  relief 
was  granted  against  alienations  by  an  executor  or  administrator  in  pay- 
ment of  his  own  debt,  or  in  which  the  *Court  thought  that  the  r;;,.^-- 
party  on  that  ground  was  entitled  to  relief,  but  denied  it  on  some  '- 
other,  such  as  lapse  of  time,  (except  Field  v.  Sehieflin,)  were  cases  of 
alienations  of  chattels  belonging  to  the  deceased  in  his  lifetime.  The 
case  of  Field  v.  Sehieflin  was  an  alienation  by  a  guardian  of  a  bond  exe- 
cuted to  him  as  guardian.  The  Chancellor,  without  adverting  to  the 
distinction,  which,  I  think,  exists  between  alienations  of  chattels,  or  choses 
in  action  belonging  to  the  deceased  in  his  lifetime,  and  such  as  are  ac- 
quired by  the  executor  or  administrator  with,  or  which  are  given  to  him 
for,  the  proceeds  of  the  estate,  gave  relief. 

Would  it  be  allowed  in  England,  if  it  could  be  shown  that  the  money 
received  for  a  chattel  aliened  by  the  executor  had  been  vested  in  bonds  or 
stock,  and  these  had  been  aliened  in  payment  of  the  executor's  own  debt, 
that  these  last  should  be  followed  into  the  hands  of  the  purchaser,  and 
his  legal  title  be  defeated?  That  no  such  case  is  found  in  the-English 
books  is  strong  evidence  that  such  a  case  is  regarded  as  too  desperate 
of  even  a  chance  of  success  to  be  presented  to  a  Court  The  sale  of  the 
testator's  or  intestate's  goods  and  chattels,  is  made  according  to  law. 
Vol.  L— 37 


214  SOUTH    CAROLINA    EQUITY   REPORTS.  [*2T5 

ends  the  equitable  rights  of  the  creditor,  legatee  or  distributee,  to  be  paid 
out  of  them.  The  proceeds  are  at  laic,  as  we  have  already  seen  the 
executor's  or  administrator's  property  ;  so,  too,  it  must  be  conceded,  are 
the  goods,  chattels  and  credits  of  the  deceased  generally.  At  law,  prior 
to  the  Act  of  1824,  he  had  no  absolute  right  of  disposition,  and  where 
the  will  directs  a  sale,  he  still  has  that  right.  Jones  v.  McNeill,  1  Hill, 
84.  But  to  some  extent,  the  goods  and  chattels,  of  which  the  deceased 
died  possessed,  are  still  regarded  as  not  the  absolute  property  of  the 
executor  or  administrator  :  in  a  contest  between  an  execution  creditor  of 
the  deceased  and  of  the  executor  or  administrator,  the  goods  would  be 
held  liable  to  the  former  and  not  the  latter.  Jones  v.  McNeill,  1  Hill, 
84.  Such  a  distinction  could  not,  however,  be  made  in  favor  of  a  creditor 
of  the  deceased,  in  a  contest  at  law  for  payment  out  of  the  proceeds  of 
choses  in  action,  payable  to  the  executor  or  administrator.  "When  the 
goods  and  chattels  of  the  deceased  are  sold,  or  his  choses  in  action  col- 
lected, the  liability  of  the  executor  or  iidministrator  to  account  for  the 
proceeds  to  all  parties  interested,  is  generally  that  to  which  they  must 
look.  The  right  to  collect  these  proceeds  is  indispensable  to  the  excutor's 
or  administrator's  now  safety.  The  right  to  use  the  fund  as  his  own,  is 
^j)K/.-i  also  a  necessary  *consequence  from  his  liability  to  account.  For 
-^  after  he  sells,  he  is  not  charged  with  the  proceeds  as  he  receives 
the  money  on  the  notes  or  bonds,  but  with  the  amount  of  the  sales  as 
cash  received.  Wright  v.  Davis,  2  Hill,  560,  decided  at  Columbia,  last 
term.  Upon  this  sum  (the  amount  of  the  sale  bill)  he  is  chargeable  with 
interest,  which  shows  that  he  is  regarded  in  contemplation  of  law  as  in 
the  use  of  the  money.  He  cannot  be  discharged  from  his  liability  to 
account  for  the  proceeds  of  the  sale,  but  by  showing  that  without  any 
fault  of  his  own  he  has  been  unable  to  make  them  available.  If  he  w^as 
not  allowed  to  alien  the  notes  or  bonds  taken  for  the  proceeds  of  the  sale, 
(without  any  other  restriction  than  it  should  be  done  without  fraud,)  it 
would  subject  him  to  the  consequences  of  general  liability,  for  the  pro- 
ceeds of  the  sale,  without  any  corresponding  advantage.  For  after  he 
made  a  sale,  and  charged  himself  in  the  sale  bill  with  the  value  of  the 
goods,  yet  he  would  stand  in  relation  to  the  proceeds  as  if  they  were  the 
goods  and  chattels  and  credits  of  the  deceased.  Such  cannot  be  the 
case.  If  it  was,  the  executor  or  administrator  ought  to  return  to 
the  ordinary,  the  bonds  or  notes  so  by  him  taken.  There  is  no  difference 
in  respect  to  this  question  between  an  administrator  or  executor ;  yet,  if 
it  be  true  that  when  an  administrator  transfers  the  bonds  taken  by  him 
for  the  goods  of  the  deceased  in  payment  of  his  own  debt,  such  transfer 
would  be  void,  it  would  follow  that  his  securites  for  the  administration 
would,  as  w^ell  as  creditors,  legatees  or  distributees,  have  the  right  to 
follow  the  fund ;  yet,  I  apprehend,  such  a  consequence  ought  not  gene- 
rally to  be  allowed.  I  have  already  said  that  an  alienation  of  the  bonds 
or  notes,  payable  to  an  executor  or  administrator,  ought  not  to  be  over 
reached  or  defeated  but  by  a  superior  equity,  or  by  fraud.  In  the  trans- 
fer of  a  chose  in  action  by  a  solvent  executor  or  administrator,  in  pay- 
ment of  his  own  debt,  it  would  seem  to  me  that  the  equity  of  the  creditor 
of  the  executor  or  administrator  is  fully  equal,  if  not  superior,  to  that  of 
the  creditor  of  the  testator  or  intestatate,  the  legatee  or  distributee.  In 
such  a  case,  he  parts  with  the  precise  money  value  of  the  thing  acquired. 


*276]  CHARLESTON,    MARCH,    1835.  215 

For  the  debt  of  the  solvent  executor  or  administrator,  which  miu:ht  have 
been  otherwise  collected,  is  given  up.  The  question  is,  who,  of  two 
innocent  persons  are  to  be  losers  ?  It  cannot  be  answered,  that  he  who 
has  the  legal  interest  is  to  be  the  man,  and  yet  this  would  l)e  the  case,  if 
the  rights  of  the  alienee  were  defeated.  If  *the  executor  or  ad-  r^gtr^ 
ministrator  were  insolvent,  and  should  transfer  the  chose  in  action  L  ' 
in  payment  of  his  own  debt,  in  such  a  case  the  equities  would  not  be  equal  : 
for  there  the  alienee  would  have  paid  nothing,  and  his  legal  estate  would 
be  over  reached  by  the  equity  of  the  creditor,  legatee  or  distributee  of 
the  testator  or  intestate,  and  the  alienee  would  be  turned  into  a  trustee. 
So,  too  where  there  has  been  a  fraudulent  alienation,  there  the  fraud 
defeats  the  title  conveyed,  and  the  alienee  holds  by  a  constructive  trust 
for  the  uses  of  the  creditor,  legatee  or  dis'  ributee  of  the  testator  or  intes- 
tate. From  these  views  these  plaintiffs  are  not  entitled  to  recover.  The 
executor,  McNish,  after  his  testator's  death,  legally  sold  his  estate  accord- 
ing to  the  will.  The  bonds  now  in  controversy  were  given  to  him,  as 
executor,  for  the  proceeds  of  that  sale.  He  was  indebted  to  the  defend-. 
ant  as  executor  of  Archibald  Longworth,  deceased — this  debt  was  secured 
by  a  mortgage.  In  payment  and  discharge  of  this  debt,  he,  when  solvent, 
paid  and  delivered  to  the  defendant,  the  bonds  and  notes  now  in  dispute, 
and  thereupon  the  defendant  gave  up  to  him  his  bond  and  mortgage  and, 
has  subsequently  accounted  for  and  paid  the  amount  to  the  devisees  of 
his  testator. 

According  to  this  statement,  his  equity  is  fully  equal,  if  not  superior 
to  that  of  the  plaintiffs,  and  hence  his  legal  title  must  prevail. 

It  is  ordered  and  decreed,  that  the  Circuit  decree  be  reversed,  and  the 
plaintiff's  bill  dismissed. 

Johnson,  J.,  and  Evans,  J.,  (sitting  for  Harper,  J,,)  concurred. 


The  Administrator  and  Administratrix  of  Thos.  N.  Johnson,  i'.  Jos. 
Johnson,  surviving  Executor  of  Mary  Johnson,  deceased,  the  Ad- 
ministrator of  RoBT.  Brailsford,  John  Miles  and  wife,  the  widow  of 
Alex.  W.  Garden,  deceased,  and  James  H.  Hext,  Administrator 
and  Administratrix  of  the  said  A.  W.  Garden,  and  Kobt.  H.  Garden, 
his  only  surviving  child. 

The  doctrine  of  waste,  as  applicable  to  this  country,  considered.  [*281] 

After  the  division  of  an  estate  and  the  appointment  of  a  guardian  for  a  minor 
legatee,  the  executors  are  no  longer  accountable  for  the  income  of  the  estate 
assigned  to  the  minor;  his  guardian  is  alone  entitled  to  possession  of  the  estate, 
and  must  account  accordingly.  [*284] 

When  from  the  facts,  an  executor  who  was  also  guardian  might  be  charged  with 
tne  receipt  of  monies  either  as  executor  or  guardian,  he  must  account  in  the  latter 
character;  for  whatever  funds  he  had  in  his  hands  as  an  executor,  were  by  opera- 
tion of  law,  transferred  to  him  as  guardian.  [*285] 

A  parol  discharge  of  a  guardian  by  his  ward  just  after  coming  of  age,  without  an 
account,  will  not  bar  an  account  against  the  guardian.  [*286] 

The  security  of  a  guardian  is  liable  for  the  default  of  his  principal,  to  the  amount 
of  the  penalty  of  the  bond,  and  not  merely  to  the  value  of  the  property  set  out  in 
the  petition  praying  the  appointment.  [*287] 


216  SOUTH    CAROLINA    EQUITY    REPORTS.  [*277 

A  father,  as  sucb,  bas  no  right  to  receive  a  legacy  of  his  child:  and  therefore  where 
an  executor  paid  a  legacy  to  the  father  of  an  infant  legatee,  and  afterwai-ds  on 
the  demand  of  the  legatee's  guardian,  his  co-executor  paid  it  to  the  guardian,  the 
last  payment  was  held  proper  and  that  the  executor  who  made  the  first,  was  liable 
to  the  estate  for  his  improper  payment.  [*288] 

Nor  will  the  fact  that  the  father  of  the  legatee  was  a  co-executor  be  an  excuse ;  for 
although  executors  are  primarily  regarded  as  only  separately  liable,  yet,  if  they 
concur  in  any  act  touching  the  estate,  they  are  jointly  liable.  [*288] 

Liability  of  co-executors  for  the  acts  of  each  other  considered  and  the  cases  on  the 
subject  examined.  [*28^»] 

The  result  of  the  cases  seem  to  be  that  where  by  an  act  done  by  one  executor,  any 
part  of  the  estate  comes  to  the  hands  of  his  co-executor,  the  former  will  be 
answerable  for  the  latter  in  the  same  manner  as  for  a  stranger  whom  he  had 
enabled  to  receive  it,  and  there  is  no  distinction  in  respect  to  their  liability, 
between  legatees  and  creditors.  [*293] 

An  executor  who  applied  to  the  ordinary  for  an  order  of  sale  and  returned  the  sale 
bill  held  liable  for  the  amount  of  the  sale,  although  his  co-executor  assisted  in  the 
sale  and  received  part  of  the  money.  [*295] 

Cases  decided  in  this  State  in  relation  to  waste  committed  by  tenants  for  life  and 
tenants  in  common.  [*29G] 

Where  a  tenant  in  common  by  cutting  down  and  clearing  wood  land  beyond  his 
interest  injures  his  co-tenant,  he  is  liable  for  waste ;  and  so  too  if  a  tenant  for  life 
cut  down  more  than  is  necessary  for  the  enjoyment  of  his  estate  and  injures  the 
remainder,  he  is  guilty  of  waste  and  liable  to  account.  [*290] 

Tenant  for  life  in  right  of  his  wife  of  land  and  slaves,  with  remainder  in  fee  of  one- 
sixth  in  the  land  after  her  death,  cleared  out  wood  land  in  the  centre  of  the  tract, 
not  leaving  sufficient  timber  to  repair  the  place: — Held,  that  if  there  was  open 
land  sufficient  for  the  employment  of  the  wife's  slaves  when  the  husband  got  pos- 
session, the  clearing  by  him  was  waste.  [*297] 

Rent  and  hire  to  which  plaintiffs  were  entitled  under  a  former  decree  set  out  in  this 
bill,  now  allowed.  [*297] 

Bill  for  an  account.  This  case  bad,  by  previous  orders  of  the  Court, 
been  referred  to  the  Commissioners,  to  state  the  accounts,  and  to  take 
^fj^oi  ^^^6  testimony  preparatory  to  trial ;  and  came  up  for  *hearing 
-■  before  Chancellor  Johnston,  at  Charleston,  May,  1834,  on  the 
report  of  the  Commissioner,  and  the  evidence  taken  by  him,  from  which 
the  following  appeared  to  be  the  state  of  the  facts : 

Thomas  N.  Johnson,  the  elder,  was,  at  the  time  of  his  death,  possessed 
of  a  large  estate,  mostly  in  Clarendon  county,  Sumter  district :  he  left  at 
his  death  a  widow,  Mary,  and  an  only  child,  Sarah,  him  surviving.  Some 
short  time  after  his  death,  the  plaintiffs'  intestate  was  born.  Thomas  N. 
Johnson,  the  elder,  left  a  will,  the  only  clauses,  or  parts  of  clauses,  which 
it  is  important  now  to  notice,  are  the  following  :  "  Item,  I  give  and 
bequeath  to  my  beloved  daughter,  Sarah,  to  her,  and  the  heirs  of  her  body 
lawfully  begotten,  all  the  rest  and  residue  of  my  estate,  wherever  it  may 
be  found,  both  real  and  personal."  "I  omitted  to  mention  in  the  proper 
place,  that  it  is  my  will,  that  should  my  daughter  marry  and  leave  at  her 
death  a  husband  and  no  children,  that  he?'  husband  shall  have  the  profits 
and  use  of  the  estate  during  his  lifetime,^''  &c. 

He  named  as  his  executors,  Matthew  James,  Charles  Connors  and  Dr. 
Joseph  Johnson  :  and  assigned  to  each  of  them  a  specific  department,  in 
which  they  should  act ;  the  first  named,  Mr.  James,  was  directed  to  take 
charge  of  that  part  of  the  estate  left  to  his  sister,  the  testator's  widow  ; 
the  second,  Mr.  Connors,  to  take  charge  of  the  testator's  business  at 
Jack's  Creek  ;  and  the  third.  Dr.  Johnson,  to  attend  to  his  business  in 
Charleston. 


*27S] 


CHARLESTON,    MARCH,    1835.  217 


There  appears  to  be  no  question  arising  out  of  the  acts  of  the  execu- 
cutors,  until  after  a  division  of  the  estate  had  been  made  between  Sarah 
and  Thos.  N.  Johnson,  and  Robert  Brailsford  had  been  appointed  the 
guardian  of  the  person  and  estate  of  the  latter.  This  appointment  took 
place  at  February  terra  of  the  Court  of  Equity  in  1818.  His  letters  of 
guardianship  are  dated  the  19th  day  of  February,  1818.  He  gave  his 
bond  with  Dr.  Alex.  W.  Garden,  as  his  only  security :  on  the  24th  of 
February,  1820,  he  made  a  single  return,  stating  the  land  and  negroes, 
and  stock  of  his  ward,  wiiich  he  received  from  the  former  guardian. 
Among  the  papers  furnished,  there  is  a  very  particular  account  of  his 
receipts  and  expenditures  from  1818  to  1824,  accompanied  by  many 
vouchers.  During  the  time  of  his  guardianship,  it  seems,  from  the  Ijooks 
of  Chisolm  &  Taylor,  the  factors  of  the  estate  of  Thomas  N.  Johnson, 
and  Mary  Johnson,  that  Joseph  Johnson  received  considerable  sums, 
parts  of  the  income  of  both  estates.  Sarah,  previous  *to  this  time,  r^jsg^q 
had  intermarried  with  Alexander  W.  Garden,  and  died  without  ^  "' 
issue.  In  January,  1818,  Mrs.  Mary  Johnson  died,  leaving  a  will,  of 
which  she  appointed  Alexander  W.  Garden,  Robert  Brailsford,  and  Dr. 
Joseph  Johnson  her  executors.  By  it,  she  gave  a  legacy  of  $1000  to 
Theodore  Brailsford,  son  of  Robert  Brailsford,  and  after  several  other 
bequests,  she  gave  the  residue  of  her  estate  to  her  only  surviving  child, 
the  plaintiff's  intestate. 

All  the  executors  qualified.  Alexander  W.  Garden  applied,  on  the 
10th  of  March,  1818,  to  the  Ordinary  of  Sumpter  district,  for  an  order 
to  sell  the  perishable  article  of  her  estate,  which  he  obtained,  and  under 
which  it  is  probable  they  were  sold  by  himself  and  Brailsford,  to  the 
amount  of  $1142  36.  Alexander  W.  Garden,  however,  alone  returned 
the  sale  bill. 

About  $t00  of  the  proceeds  of  this  sale  were  collected  by  Brailsford  ; 
of  the  balance,  except  $3  accounted  for  by  Alexander  "W.  Garden,  no 
account  is  given.  Alexander  W,  Garden  paid  the  legacy  of  $1000 
bequeathed  to  Theodore  Brailsford  by  his  testatrix,  to  Robert  Brailsford, 
the  legatee's  father,  during  the  minority  of  the  said  legatee,  and  charged  it 
in  his  account  for  1818,  returned  to  the  ordinary.  It  seemed  that  this 
account  closed  the  acts  of  Alexander  W.  Garden  with  his  testatrix's 
estate.  He  died  on  the  5th  of  August,  1820,  leaving  a  widow,  who  has 
since  intermarried  with  John  Miles,  and  two  children,  only  one  of  whom 
is  now  surviving.  James  H.  Hext  and  the  widow  administered  on  his 
estate,  and  were  in  possession  of  the  estate  of  Alexander  "W.  Garden, 
including  the  land  and  negroes  of  his  first  wife,  Sarah,  devised  to  her  by 
her  Father,  Thomas  N.  Johnson,  the  elder.  A  bill  was  filed  by  Robert 
Brailsford,  as  guardian  of  Thomas  N.  Johnson,  against  the  widow,  and 
Hext  the  administrator,  and  the  minor  children  of  Garden,  for  the  reco- 
very of  the  property,  real  and  personal,  devised  to  his  wife  Sarah  by  her 
father.  That  case  resulted  in  a  decree  that  the  plaintiff's  ward  was 
entitled  to  half  of  the  negroes  and  other  personal  estate,  and  five-sixtlis 
of  the  land.  A  partition  accordingly  took  place,  and  in  it  the  plaintifi"'s 
intestate  received  of  the  personalty  $190,  and  of  the  realty  $280  more 
than  his  share  ;  making  an  aggregate  of  $470,  to  be  paid  to  Garden's 
administrator  and  administratrix.  From  the  Commissioner's  report,  it 
seems  that  the  Court  decreed  that  there  should  be  an  account,  by  the 


218  SOUTH   CAROLINA   EQUITY   REPORTS.  [*279 

defendants,  of  five-sixths  of  the  rents  of  the  hind,  and  one-half  of  the. 
hire  of  the  negroes,  from  January,  1821.  This  account,  it  seems,  has 
♦  9Rnl  *"everbeen  taken.  In  1824  (July),  Thomas  N.  Johnson  came  of 
-'  full  age.  In  1825  he  received,  from  his  guardian,  his  laud  and 
negroes,  and  died  in  the  next  year  (1826),  leaving  the  plaintiff,  Margaret 
Ann,  his  widow,  but  no  children.  Between  his  attaining  to  full  age  and 
his  death,  as  appeared  from  the  evidence  of  Mrs.  M'Leod,  the  daughter 
of  Brailsford,  he  often  expressed  himself  to  his  guardian  as  satisfied  with 
his  management  of  his  estate,  and  offered  to  give  hira  a  discharge.  But 
none  was  given,  on  account  of  the  guardian's  deferring  it  to  another  time. 
The  guardian  never  exibited  his  accounts  to  his  ward. 

Of  the  land  of  his  first  wife,  of  which  he  was  entitled  to  possession 
during  life,  and  to  one-sixth  in  fee,  it  is  alleged  by  the  plaintiffs,  that 
Alexander  W.  Garden  committed  waste.  The  Commissioner  states,  that 
Dr.  Garden  cleared  sixty  acres  of  wood  land  in  the  centre  of  the  tract, 
which  did  not  leave  timber  enough  upor  the  rest  of  the  land  for  fencing. 
The  damage  thus  done  to  the  fee  was  estimated  at  $500. 

After  the  death  of  Thomas  N.  Johnson,  Robert  Brailsford  died  intes- 
tate and  insolvent.  Subsequently,  Matthew  James  was  appointed  the 
guardian  of  Theodore  Brailsford,  and  demanded  from  Dr.  Johnson,  the 
surviving  executor  of  Mary  Johnson,  payment  of  the  legacy  of  $1000, 
left  by  Mrs.  Johnson  to  him,  and  which  had  been  paid  to  his  father,  Rob- 
ert Brailsford,  by  Alexander  W.  Garden.  The  surviving  executor  having 
in  his  hands,  in  a  debt  on  the  guardian,  Mr.  James,  assets  belonging  to 
the  estate  of  Mary  Johnson,  much  beyond  the  amount  of  the  legacy  and 
interest  claimed,  paid  it ;  and  credit  has  been  allowed  to  him  for  the  pay- 
ment, in  his  accounts  on  his  testator's  estate  :  so  that  such  payment 
diminishes,  pro  tanto,  the  residuary  estate  which  belongs,  under  the  will, 
to  the  plaintiffs'  intestate. 

On  exceptions  by  both  parties  to  the  Commissioner's  report,  and  on 
certain  points  therein  reserved,  the  Chancellor  held  : — As  to  the  liability 
of  Robert  Brailsford,  as  guardian  of  Thomas  N.  Johnson,  jr.,  that  he  was 
chargeable  only  with  such  amount  as  was  proved  to  have  been  actually 
received  by  him  ;  and  as  regards  the  estate  of  Mary  Johnson,  as  it  appeared 
that  the  other  executors  received  portions  of  it,  he  was  not  chargeable 
with  such  sums,  without  proof  of  transfer  to  him,  nor  for  the  amount 
unaccounted  for ;  that  the  evidence  showed  that  he  had  accounted  to  the 
entire  satisfaction  of  his  ward  ;  and  although  no  formal  release  was  given, 
*9oi-n  there  *was  such  high  evidence  of  the  execution  of  the  trust,  that 
-^  it  was  safer  to  rely  on  it,  than  upon  the  uncertain  evidence  on  the 
subject  of  the  accounts. 

In  relation  to  the  payment  by  Alexander  W.  Garden,  of  the  legacy  of 
$1000,  in  the  will  of  Mrs.  Johnson,  to  Robert  Brailsford,  the  father  of 
the  legatee,  he  held  that  the  subsequent  ])ayment  by  Dr.  Jos.  Johnson,  to 
the  guardian  of  the  legatee,  was  justifiable  and  proper,  and  that  from  the 
moment  the  legacy  was  paid  by  Dr.  Johnson,  the  sum  received  by  Brails- 
ford ceased  to  be  liable  for  it,  and  resulted  to  the  estate  to  the  use  of 
Thomas  N.  Johnson,  jr.;  Brailsford,  being  his  guardian,  became  instantly 
chargeable  as  such,  with  what  he  had  received  as  executor ;  and  Garden, 
as  sole  surety  for  the  guardianship,  became  chargeable  also.  Brailsford 
could  not  have  accounted  for  this,  the  transaction  having  taken  place  after 


*281]  CHARLESTON,    MARCH,    1835.  219 

his  death  ;  and  that  Dr.  Johnson  was  entitled  to  reimbursement  prima- 
rily against  Brailsford,  secondly  against  Garden. 

In  regard  to  the  sale  of  the  perishable  articles  of  the  estate  of  Mrs. 
Johnsoif,  the  Chancellor  held,  that  Alexander  W.  Garden  was  not  liable 
for  the  amount  of  such  sale,  as  from  the  evidence  he  neither  received  the 
money  nor  was  guilty  of  any  laches. 

On  the  question  of  waste  committed  by  Dr.  Garden,  he  decreed  as 
follows : 

"  It  is  admitted,  that  at  all  events  there  should  be  deducted  from  the 
sum  assessed,  an  amount  proportioned  to  Dr.  Garden's  si.xth  in  the  fee  ; 
but  the  question  remains,  is  his  estate  at  all  chargeable  with  waste  for  the 
clearing  of  the  sixty  acres  ?  The  clearing  has  impaired  the  value  of  the 
land  ;  and  according  to  the  English  doctrine,  amounts  to  waste  for  which 
the  tenant  for  life  would,  as  a  trustee,  be  accountable,  if  by  the  terms  of 
his  tenancy  he  was  impeachable  for  waste.  I  have  heard  it  suggested, 
however,  that  the  English  doctrine  must  be  modified  in  this  State,  and 
that  it  is  not  waste  here,  for  one  entitled  to  the  use,  to  clear  so  much  wood 
land,  from  year  to  year,  as  a  prudent  planter  would  clear,  if  he  were  enti- 
tled to  the  fee.  It  appears  to  me  this  is  a  hasty  conclusion.  It  is  no 
light  thing  to  unsettle  a  legal  doctrine.  It  is  still  worse  to  convert  one 
which  is  certain  into  one  so  vague  as  that  which  has  been  mentioned. 

"  There  is  a  certain  narrowness  of  mind,  often  passing  for  liberality, 
*which  can  endure  nothing  fixed,  either  in  doctrine  or  in  practice,  r:i<282 
and  which,  instead  of  recognizing  in  settled  rules  the  only  seen-  _ 
rities  which  society  can  throw  around  the  rights  of  the  citizen,  is  ever 
impatient  under  them,  regarding  them  as  harsh  restraints  upon  the  free 
administration  of  justice.  With  such,  every  circumstance,  however  light, 
limited,  or  tempory  in  its  character,  forms  a  reason  for  modifying  doc- 
trines or  relaxing  the  rules  of  procedure.  They  trust  that  justice  will  l>e 
more  certainly  attained  by  consulting  the  particular  circumstances  of  the 
times,  the  parties  or  the  case,  than  by  the  general  application  of  pre- 
existing rules.  But  to  say  nothing  of  the  obligation  upon  the  judiciary 
to  apply  as  the  law  what  the  society  have  adopted  as  the  law,  regarding 
it  as  the  will  of  the  society  until  altered  by  legislation,  or  of  the  perplex- 
ity to  which  fluctuating  decisions  would  doom  the  citizen,  or  of  the  oppor- 
tunities which  they  would  beget  for  arbitrary  adjudications  ;  it  may  well 
be  asked,  whether  the  rules  of  law,  drawn  as  they  are  from  a  philosophi- 
cal examination  on  all  sides  of  the  general  interests  of  society,  and  tested 
by  experience,  are  not  more  likely  to  be  just,  than  crude  and  hasty  con- 
clusions adopted  on  the  spur  of  every  occasion.  My  own  solemn  convic- 
tion is,  that  law  is  justice — that  it  is  the  highest  degree  of  it  which  man 
can  administer  to  man.  I  am  persuaded  that  rules,  upon  which  the  citizens 
can  ground  their  expectations,  are  indispensable  to  the  progress  and 
welfare  of  society,  and  cannot  safely  be  relaxed,  shaken  orchanged,  but 
upon  the  ground  of  imperative  necessity.  In  the  consideration  and  a]ipli- 
cation  of  legal  doctrines,  we  should  not  confine  ourselves  to  the  present 
occasion,  or  make  a  change  of  them  to  suit  our  present  condition,  which 
will  not  suit  hereafter.  If  we  do,  when  the  time  comes  for  another  judi- 
cial  modification  (which,  upon  the  same  principle,  must  then  l)e  made,) 
we  shall  subject  the  interest  of  the  country  to  a  dreadful  revulsion.  Whole 
masses  of  men  will  then  be  deprived  of  rights,  which,  up  to  the  moment 


220  SOUTH   CAROLINA   EQUITY   REPORTS.  [*282 

of  their  being  adjudicated  out  of  tliera,  tliey  held  under  the  law  of  the 
land.     Nothuig  can  Ijc  more  shocking. 

"  The  doctrine  of  waste,  as  we  have  received  it,  will  be  indispensable, 
when  our  State  (at  no  distant  day,  it  may  be  hoped,)  shall  become  densely 
peopled  and  highly  im])roved.  When  our  forests  shall  have  given  way, 
as  they  are  rai)idly  giving  way,  to  cultivated  fields,  who  will  then  contend 
*98^1  that  it  is  not  waste  in  one,  entitled  *raerely  to  a  temporary  use,  to 
-■  deteriorate  aral)le  land  by  improvident  culture ;  and  as  if  that 
wrong  were  not  enough,  to  resort  to  the  standing  timber,  further  than  is 
necessary  to  the  use  of  the  land  as  he  received  it  ?  My  own  opinion  is, 
that  what  is  waste  in  England,  is  waste  here.  That  any  treatment  which 
leaves  open  lauds  less  fertile,  or  changes  their  culture,  or  mars  the  woods 
or  structures,  is  waste.  It  by  no  means  follows,  however,  that  because 
clearing  is  waste,  the  life  devisee  of  wild  lands  is  chargeable  with  waste 
for  clearing  them.  The  devisee  cannot,  without  clearing  them,  realize 
the  benefit  which  the  devise  implies ;  therefore  there  is  a  further  implica- 
tion of  exemption  from  impeachment  for  tiie  clearing.  If  there  had  been 
no  open  laud  on  the  tract  devised  to  Dr.  Garden  for  life,  so  that  he  could 
have  derived  no  profit  without  clearing,  I  should  have  thought  the  charge 
for  waste  was  erroneous.  But,  if  I  correctly  understand  the  facts,  there 
was  a  considerable  extent  of  open  land.  The  Commissioner  has  my 
views,  and  can  cast  his  report  accordingly.  If  there  was  open  land,  the 
charge  of  waste  is  sustained.  If  there  was  not,  then  Dr.  Garden  had  a 
right  to  clear.  That  right,  however,  was  not  without  limits  ;  and  this 
strikes  me  to  be  the  extent  of  his  right :  that  where  the  fee  is  limited 
over,  after  a  life  estate  in  wild  lands,  the  life  tenant's  clearing  must  not 
transcend  that  proportion  to  the  whole  land  which  the  life  estate  bears  to 
the  fee.     In  this  case  Dr.  Garden's  sixth  ought  to  be  added." 

On  appeal  from  the  decree  of  Chancellor  Johnston,  the  case  was 
elaborately  argued  by  31%'rady  and  Meniminger,  for  the  plaintiffs,  and 
Toomer  for  the  defendants  ;  but  the  arguments  are  so  fully  stated  in  the 
opinion  of  the  Appeal  Court  as  to  supersede  the  necessity  of  any  report 
of  them. 

O'Neall,  J.  [after  making  the  foregoing  statement  of  facts.]  The 
questions  arising  out  of  these  facts,  seem  to  rae  to  be  the  following,  viz: 

1.  Ought  Robert  Brailsford  to  be  charged  as  guardian  with  the  income 
derived  from  the  estate  of  Tlios.  N.  Johnson,  (which  was  assigned  to  him 
as  his  part  of  the  estate  of  his  father,  from  the  time  of  his  appontment  as 
guardian  ? 

2.  Ought  he  to  be  charged  as  guardian,  with  the  income  of  Mary 
Johnson's  estate  from  1819. 

*2841  *^'  ''^^  ^^®  parol  discharge  of  Robert  Brailsford  by  his  ward, 
just  after  he  attained  to  maturity  without  an  account,  a  sufficient 
disqharge  in  law  to  bar  the  account  now  claimed  ? 

4.  Is  Alex.  W.  Garden,  the  security  of  Robert  Brailsford,  the 
guardian,  liable  to  the  extent  of  the  penalty  of  his  bond,  for  the  arrears 
of  the  said  Robert  on  account  of  his  said  guardianship  ? 

5  Is  Alex.  W.  Garden  liable  as  executor  of  Mary  Johnson,  to  account 
to  the  plaintiffs  for  the  $1000  with  interest  thereon,  paid  to  Robert 
Brailsford,  on  account  of  the  legacy  to  his  sou  ? 


*284]  CHARLESTON,    MARCH,    1835.  221 

6.  Is  Alex.  W.  Garden,  as  executor,  accountable  for  the  amount  of 
the  sale  of  the  perishable  articles  sold  as  Mary  Johnson's  estate,  with  the 
interest  thereon  ? 

7.  Was  waste  committed  by  Alex.  W.  Garden,  and  if  so,  arc  the 
plaintilfs  entitled  to  an  account  for  the  same  ? 

8.  Are  the  defendants  in  this  case  liable  to  account  for  the  rent  and 
hire  directed  to  be  accounted  for  in  the  former  decree  ? 

Each  of  these  questions  have  been  most  elaborately  discussed,  and  have 
been  maturely  considered  by  the  Court.  The  able  and  zealous  counsel 
for  the  defendants  has  made  us  feel  deeply  for  the  orphan,  who,  from  his 
statement,  will  be  stripped  of  every  thing  by  our  decision  :  but  it  is  not 
for  us  to  give  way  to  the  feelings  of  men — our  duty  is  a  stern  and  inex- 
orable one,  to  administer  the  law,  which,  as  the  Chancellor  said  in  this 
cause,  is  justice.  The  several  questions  will,  as  briefly  as  possible,  be 
disposed  of  in  the  order  in  which  they  have  been  set  down. 

1.  There  can  be  no  question  that  the  guardian,  Robert  Brailsford,  is 
alone  accountable  for  the  income  of  that  part  of  the  estate  of  Thomas  N, 
Johnson  the  younger,  derived  from  his  father ;  for  as  guardian,  he  seems 
iDy  his  own  return  to  have  been  in  the  possession  of  the  corpus  of  the 
estate  :  but  in  law,  after  the  division  between  Thos.  N.  Johnson,  and 
Sarah,  and  after  a  guardian  had  been  appointed  for  the  minor  or  minors, 
the  executors  were  no  longer  accountable  for  the  future  income  of  the 
estate.  The  guardian  was  alone  entitled  to  the  possession  of  his  ward's 
estate,  and  must,  as  a  matter  of  course,  be  regarded  as  in  the  receipt  of 
the  income.  If  Dr.  Johnson  received  a  part  of  the  income,  it  must  have 
been  as  the  agent  of  the  guardian  :  for  he  had  no  other  right  to  receive 
it.  It  is  probable  that  when  the  accounts  of  the  receipts  and  expendi- 
tures of  the  guardian,  and  of  Dr.  Johnson,  regarded  as  his  agent  in  this 
respect,  come  to  be  examined,  that  all  the  supposed  ^hardships  of  r^oori 
this  part  of  the  case  will  vanish.  But  be  that  however  as  it  may,  •- 
Brailsford  must  account  for  the  income  of  the  estate,  and  show  how  it 
has  been  expended,  and  must  be  held  responsible  for  any  balance  which 
may  be  found  on  the  foot  of  his  account. 

2.  There  is  perhaps  a  little  more  difficulty  in  the  question,  as  to  his 
liability  to  account  as  guardian  for  the  income  of  Mary  Johnson's  estate. 
He,  Dr.  Johnson,  and  Garden,  were  the  executors  of  her  will.  Garden 
acted,  as  appears  from  the  papers,  for  only  a  single  year.  The  plantation 
and  negroes  were  in  the  immediate  vicinity  of  Brailsford  ;  and  it  seems 
to  be  pretty  well  established  from  the  defendants'  own  showing,  that  he 
had  the  entire  management  of  all  Thos.  N.  Johnson's  estates,  whether 
derived  from  his  father  or  mother,  which  were  in  the  country.  These 
facts  constitute  such  a  reasonable  showing,  as  would  charge  Brailsford 
with  an  account  for  the  income,  as  executor,  or  as  guardian.  He  must, 
however,  by  operation  of  law,  account  in  the  latter  character  ;  for  what- 
ever funds  he  had  in  his  hands  as  executor  for  Thos.  N.  Johnson,  by 
operation  of  law,  were  transferred  to  his  account  as  guardian..  In  ad- 
dition to  the  view  which  I  have  suggested,  it  may  be  added,  that 
executors  are  only  jointly  liable,  so  far  as  they  concur  in  an  act  done  in 
the  administration  of  their  testator's  estates.  Each  are  primarily 
regarded  as  separately  liable  :  and  as  between  (Jiemselves,  this  is  always 
the  rule.— Motte  v.  Shult  and  Motte,  1  Hill's  Ch.  Rep.  14G.     It  will  be 


222  SOUTH   CAROLINA    EQUITY    REPORTS.  [*285 

observed,  that  Dr.  Garden  has  accounted  for  his  receipts  of  the  income 
during  the  single  year,  in  which  he  acted  as  executor.  Dr.  Johnson,  in 
this  case  has  filed  his  account,  which  is  satisfactory  to  the  parties.  Mr. 
Brailsford  has  never  exhibited  any  account  of  iiis  receipts,  unless  it  may 
be  embraced  in  the  account  from  1818  to  1824,  found  among  the  papers 
furnished  to  me.  The  fair  presumption  from  these  circumstances  is,  that 
he  is  alone  accountable  for  that  part  of  the  income  unaccounted  for.  It 
is  plain,  that  the  income  exceeds  the  sum  received  by  the  other  executors. 
It  is  conceded  that  in  this  respect  they  have  fairly  accounted  :  the  balance 
unaccounted  for,  may  be  fairly  charged  to  him  who,  by  his  default  in  not 
accounting,  is  legally  presumed  to  be  in  the  wrong.  Add  to  these  con- 
siderations the  fact,  that  as  guardian,  he  ought  by  law,  at  the  expiration 
of  one  year  after  his  testator's  death,  to  have  compelled  the  possession  of 
*98fi1  ^^^  ward's  estate  to  have  been  *delivered  to  him,  and  his  liability 
-'  to  the  account  is  sufficiently  made  out. 

3.  I  am  perfectly  satisfied  that  the  verbal  discharge  cannot  operate. 
The  only  mode  in  which  it  could  have  effect,  would  be  as  an  admission 
that  an  account  had  taken  place  between  the  guardian  and  the  ward,  and 
that  the  former  had  paid  to  the  latter  the  balance  due.  But  nothing 
of  this  kind  did  take  place  ;  the  guardian,  Brailsford,  as  appears  in  this 
cause,  had  not  made  out  his  accounts  until  after  the  death  of  Thos.  JS". 
Johnson.  He  did  not  even  pretend  at  the  time  spoken  of  by  Mrs. 
M'Leod,  the  witness,  to  make  any  statement  of  the  accounts  of  his  guar- 
dianship with  his  ward.  "  He,"  (Mr.  Brailsford)  said  "  he  did  not  care 
much  about  it,  (the  discharge)  as  he  had  delivered  up  all  the  property,  and 
did  not  have  any  money  concerns  with  the  estate, — that  part  was  conducted 
by  his  co-guardian,  Dr.  Joseph  Johnson,  tvho  would  have  to  account 
for  the  funds.''^  This  testimony  of  the  witness  puts  the  discharge  out 
of  all  question  ;  for  it  shows  that  there  was  not  only  no  accounting,  but 
also  that  the  guardian  had  deceived  the  ward  in  inducing  him  to  believe 
that  he  had  n©  funds  belonging  to  him  in  his  hands. 

But,  if  a  regular  release  had  been  executed,  it  could  not  have  been 
supported.  A  guardian  dealing  with  his  ward,  just  after  he  has  arrived 
at  full  age,  and  obtaining  any  beneficial  contract  from  him,  or  a  release 
of  the  ward's  rights,  must,  in  order  to  have  it  sustained,  show  its  fairness. 
In  this  case,  the  supposed  discharge  was  probably  in  less  than  a  year 
after  the  ward  attained  to  full  age,  and  at  or  about  the  time  that  he  re- 
ceived the  possession  of  his  estate  :  and  there  is  not  only  no  proof  of 
fairness  in  the  transaction,  but  there  is  abundant  reason  to  believe,  that 
whatever  Mr.  Johnson  did  say,  was  said  in  ignorance  of  his  rights.  The 
case  of  Hylton  v.  Hylton,  2  Ves.  Sen.  547,  is  a  clear  "and  direct 
authority  against  the  allowance  of  the  release  to  the  guardian,  even  if  it 
had  been  regularly  executed. 

_  In  that  case,  "  The  plaintiff  had  considerable  gifts  or  provisions  left  to 
him  by  the  will  of  Philippa  Downs,  his  aunt  and  Charles  Palmer,  his 
half  brother.  The  defendant,  his  uncle,  was  acting  executor  and  trustee 
in  both  those  wills,  and  also  acted  as  guardian  to  him  during  the  minority, 
having  neither  father  or  mother.  Coming  of  age  in  April,  1746,  he,  in 
October,  1748,  entered  into  a  transaction  with  his  uncle,  whereby  he 
*2871  Si'anted  to  him  an  annuity  *of  £60,  gave  him  a  general  release, 
and  two  written  discharges,  all  signed  the  same  date  with  the 
grant  upon  his  delivering  up  several  papers  "     "  The  bill  was  filed  to  set 


*287]         CHARLESTON,  MARCH,  1835.  223 

aside  the  grant  of  the  annuity  upon  the  general  principles  of  being  made 
just  after  coming  of  age  without  being  thoroughly  informed,"  and  Lord 
Chancellor  Hardwicke  decreed  accordingly.  In  the  conclusion  of  his 
opinion,  the  Lord  Chancellor  says,  "  nor  is  there  any  evidence  of  an 
account  made  up  of  the  personal  estate  proved  to  have  come  to  the 
defendant's  hands.  Certainly,  if  any  thing  could  make  such  a  trans- 
action supportable,  it  must  be  where  there  Kas  a  7'eal  and  fair  account ; 
of  which  there  is  no  evidence  :  yet  a  general  release  is  given  upon 
delivering  up  several  papers  and  vouchers  as  they  are  called." 

It  will  be  observed  that  the  Chancellor  says  in  that  case,  that  the  only 
circumstance  which  could  sustain  the  grant  of  the  annuity,  was  "a  real 
and  fair  account ;  the  same  rule  governs  a  release,  which  is  in  point  of 
fact  a  gift  to  the  guardian  of  his  arrears ;  and  unless  the  ward  sees  most 
clearly  what  he  is  about  to  do,  it  cannot  be  supported.  In  the  case 
under  consideration,  that  knowledge  is  wanting,  and  in  every  point  of 
view,  the  defence  attempted  to  be  set  up  in  this  respect  must  fail. 

4.  That  the  security  of  the  guardian  is  liable  for  the  default  of  his 
principal  to  the  full  amount  of  the  penalty  of  the  bond,  is,  I  think,  too 
plain  a  proposition  to  require  much  illustration.  The  appointment  of  a 
guardian  of  the  person  and  estate  of  a  minor,  is  not,  as  was  supposed  by 
my  friend,  the  counsel  for  the  defendants,  limited  to  the  property  set  out 
in  the  petition,  praying  that  the  appointment  should  be  made.  The  Court 
may,  it  is  true,  so  limit  it ;  but  unless  the  appointment  is  restricted  and 
special  in  its  terms,  it  e.x;tends  to  all  the  property  which  the  minor  may 
then  or  afterwards  possess.  It  is  hence  that  the  bond  is  always  taken  in 
a  larger  sum  than  the  nett  value  of  the  ward's  estate  at  the  time  the 
appointment  is  made.  There  might  have  been  some  difficulty  about  the 
jurisdiction  of  the  Court,  to  decree  against  the  security :  but,  as  in  the 
case  of  M'Dowall  v.  Caldwell,  2  M'C.  C.  R.  43,  that  question  was  not 
raised  by  the  defendants,  and  the  Court  will  at  once,  without  any  circuity 
of  action,  hold  the  representatives  of  Dr.  Garden  liable,  so  far  as  they  may 
have  assets,  real  or  personal,  and  to  the  extent  of  the  penalty  of  the  Ijoud, 
for  the  default  of  the  guardian,  Robert  Brailsford. 

5.  Ithinkthat  Alex.  W.Garden  is  liable  as  executor  to  the  *plain-  r^^oo 
tiifs'  intestate  for  the  SlOoO  and  interest  thereon,  paid  by  him  to  ^  *" 
Robert  Brailsford  for  his  son's  legacy.  The  truth  of  this  conclusion 
depends  upon  showing  that  this  payment  was  an  illegal  one,  and  that  the 
payment  made  by  Dr.  Joseph  Johnson,  the  surviving  executor,  out  of  the 
residuary  estate,  was  proper,  and  entitles  the  plaintiffs'  intestate  to  the 
account  against  Garden,  the  executor.  It  was  contended  that  the  pay- 
ment to  Robert  Brailsford,  as  the  father  of  the  legatees,  was  good.  But 
this  is  wholly  untenable.  The  point  was  very  fully  considered  and 
adjudged  by  Chancellor  Kent,  in  the  case  of  Genet  v.  Tallmadge,  1  John. 
C.  R.  3.  .  He  held,  after  a  general  review  of  the  decided  cases,  that  a 
father,  as  such,  had  no  right  to  receive  the  legacy  of  his  child.  To  attempt 
to  add  any  thing  to  his  conclusive  array  of  authorities,  would  be  an  idle 
consumption  of  time.  It  was  next  urged,  that  although  the  payment  to 
him,  as  father,  might  not  be  good,  yet,  that  as  co-executor,  he  had  the 
right  to  receive  the  legacy,  and  that  his  receipt  of  the  money  discharged 
Garden.  I  have  already  had  occasion  to  say,  that  primarily  executors 
are  regarded  as  separately  liable ;  but  that,  if  they  concur  in  any  act 


224  SOUTH   CAROLINA   EQUITY   REPORTS.  [*288 

touching  their  testator's  estate,  that  they  are  jointly  liable.  This  is,  I 
thinli,  a  wise  rule  in  both  its  parts — the  latter  is  only  subject  to  objection 
on  the  present  occasion,  and  it  is  only  necessary  that  it  should  now  be 
vindicated.  If  it  were  the  case  that  executors  when  they  concurred  in  an 
act  were  not  required  to  account  for  it  jointly,  there  could  be  no  safety  to 
an  estate.  Responsibility  might  be  shifted  at  pleasure  by  transferring 
the  funds  :  and  a  solvent  executor  might  release  himself  from  liability,  by 
simply  producing  the  receipt  of  an  insolvent  co-executor.  For  the  sake 
of  some  pecuniary  advantage  or  other  cause,  an  executor  might  desire  to 
give  up  his  trust;  it  has  been  held  that  the  Courts  cannot  release  him  ; 
and  yet,  by  simply  turning  over  the  funds  to  his  co-executor,  he  might  be 
released,  if  his  liability  ceased  as  soon  as  he  parted  with  them  to  his 
co-executor.  If  he  choses  to  turn  over  a  fund  in  his  hands  to  his  co  ex- 
ecutor, he  is  generally  responsible  for  its  administration  ;  for  he  thus 
makes  the  other  his  agent  for  its  application.  Both  are  liable  to  their 
cestui  que  trusts,  for  both  have  had  the  actual  control  of  the  fund,  and 
both  have  concurred  that  one  should  manage  it.  If  it  is  a  well  settled 
rule  of  law,  "  that  where  by  an  act  done  by  one  executor,  any  part  of  the 
estate  comes  to  the  hands  of  his  co-executor,  the  former  will  be  ansv/er- 
^;goQ-]  able  for  the  latter,  in  the  same  manner  as  he  would  have  *been  for 
"  -•  a  stranger  whom  he  enabled  to  receive."  Toller's  Law  of  Ex'ors, 
484.  It  is  our  duty  to  give  it  effect  in  this  case,  by  holding  Garden  to 
be  liable  for  the  $1000  paid  to  Brailsford  for  his  son's  legacy  and  by  him 
not  paid  over.  Without  going  through  all  the  cases  bearing  upon  this 
position,  it  will  be  sufficient  to  cite  and  examine  some  of  the  leading 
cases.  In  Grose  v.  Smith  and  Munt,  7  East.  246,  the  defendants  were 
co-executors  of  Grierson,  who  was  indebted  by  bond  to  the  plaintiffs' 
intestate.  Smith  having  £400  of  the  assets  of  his  testator,  remitted  the 
same  to  Munt,  for  the  purpose  of  being  paid  over  to  the  payment  of 
Grierson's  debt ;  he  however  paid  it  to  a  simple  contract  debt  due  by 
Grierson  to  hitnself,  and  subsequently  became  bankrupt.  The  question 
was,  whether  Smith  was  liable  for  the  misapplication  of  the  £400,  and 
it  was  held  that  he  was.  The  only  possible  distinction  between  that  case 
and  the  one  under  consideration  is,  that  there  the  question  was  made  by  a 
creditor  plaintifi",  and  here  by  the  residuary  legatee.  I  am  persuaded 
from  the  best  examination  I  have  been  able  to  give  to  the  subject,  there 
is  no  such  just  distinction ;  but  that  will  be  further  considered  in  the 
sequel.  In  the  case  of  Crosse  v.  Smith,  Lord  Ellenborough's  concluding 
words  state  very  fully  and  forcibly  the  legal  conclusion,  making  out  almost 
in  terms  the  rule  which  I  have  stated  from  Toller.  He  said,  "  in  con- 
formity therefore  to  the  rules  of  law  as  handed  down  to  us  in  respect  to 
executors,  we  are  obliged  to  pronounce  that  the  defendant,  Smith,  having 
once  received  and  fully  had  under  his  control  assets  of  the  testator  appli- 
cable to  the  payment  of  this  bond  debt,  was  responsible  for  the  applica- 
tion thereof  to  that  purpose,  and  such  application  having  been  disappointed 
by  the  misconduct  of  his  co-executor,  whom  he  employed  to  make  the 
payment  in  question,  he  is  liable  for  the  consequences  of  such  misconduct, 
as  much  as  if  the  misapplicatien  had  been  made  by  any  other  agent  of  a 
less  accredited  and  inferior  description."  It  may  however  be  objected  to 
that  case,  that  it  was  at  law,  and  that  in  equity,  a  different  rule  prevails : 
but  this  is  a  mistake ;  equity  is  bound  as  much  by  legal  rules  where  they 
apply  to  the  case  as  a  Court  of  law.     Relief  may,  and  often  is,  given  in 


*289]         CHARLESTON,  MARCH,  1835.  225 

equity  where  it  cannot  be  at  law,  owing  to  the  difference  in  the  modes  of 
proceeding,  and  the  clTect  of  the  judgments  of  the  two  Courts  :  at  law, 
the  judgment  gives  effect  to  a  previously  existing  legal  right :  in  equity, 
the  decree  creates  a  legal  right  out  of  a  contract  or  trust.  But  it  will  be 
seen  on  ^looking  to  Lord  Ellenborough's  judgment,  that  he  founds  r;xgnn 
it  mainly  upon  cases  decided  in  the  Chancery  Court,  and  it  is  '-  " 
hence  apparent  that  the  rule  is  the  same  in  both  Courts. 

In  Sadler  v.  Hobbs,  2  Br.  C.  C.  114,  the  bill  was  filed  by  a  residuary 
legatee  for  his  legacy,  and  in  the  report  on  the  accounts,  it  appeared  that 
Davies  had  joined  with  Reeve,  his  co-executor,  in  drawing  two  bills  of 
exchange,  amounting  together  to  £7000,  on  the  house  of  Trueman,  Reeve 
&  Co.,  payable  to  Devonshire  &  Reeve,  as  he  supposed,  in  satisfaction  of 
the  testator's  debt  to  them  to  that  amount ;  but  he  was  in  this  respect 
mistaken,  the  debt  being  only  £3000,  so  that  the  executors  had  paid 
£4000  too  much.  Reeve,  the  executor,  who  received  the  money  under 
the  bills  of  exchange,  afterwards  became  bankrupt.  The  question  for  the 
Court  was,  whether  the  joinder  of  Davies  in  the  bills  of  exchange,  with- 
out the  receipt  of  the  money,  made  him  answerable  to  the  plaintiff  for  it. 
Lord  Chancellor  Thurlow  ruled  that  he  was ;  and  stated  the  rule  to  be, 
"  that  where,  by  any  act  or  any  agreement  of  the  one  party,  money  gets 
into  the  hands  of  his  companion,  whether  a  co-trustee  or  co-executor,  they 
shall  be  both  answerable."  In  a  note  to  that  case  (Note  1)  the  editor 
remarks,  that  "  Westley  v.  Clarke  (before  Lord  Northington,  and  lately 
reported  in  1  Eden,  357)  mentioned  in  the  case  of  Sadler  v.  Hobbs,  with 
some  disapprobation,  (whether  rightly  determined  as  to  its  peculiar  cir- 
cumstances, 4  Ves.  609,)  seems  to  have  given  occasion  to  relax  the  sound 
and  intelligible  rule  which  previously  prevailed,  viz. :  that  where  either 
executors  or  trustees  (and  executors  more  especially)  joined  in  any  act 
which  as  to  them  loas  U7ineceiisary,  and  a  loss  happened,  the  parties  thus 
unnecessarily  concurring  should  be  held  responsible,  although  none  of 
the  funds  came  into  their  hands  :  that  rule  seems  to  he  noio  restorecV^ — 
and  he  refers  to  a  host  of  authorities  in  support  of  his  assertions. 
Although  in  the  words  of  this  note,  and  of  Lord  Thurlow  in  the  case  of 
Sadler  v.  Hobbs,  there  is  some  difference  from  those  employed  by  Toller, 
in  stating  the  rule  as  I  have  done,  yet  the  difference  is  merely  verbal : 
the  rule  is  identical  in  substance.  For  the  meaning  is  clear  throughout, 
that  the  concurrence  to  charge  an  executor  for  the  act  of  a  co-executor, 
must  be  voluntary  and  not  the  result  of  legal  necessity.  The  case  of 
Sadler  v.  Hobbs  and  that  under  consideration  are  almost  identical.^  That 
case  as  well  as  this  was  in  equity,  and  on  a  bill  filed  by  the  residuary 
legatee :  the  concurrence  there,  was  not  greater  than  it  is  ^  here  ;  it 
*was  a  payment  to  a  co-executor  as  one  of  a  firm,  supposing  him  r*29i 
entitled  to  receive  it  on  account  of  a  debt,  when  in  fact  he  received 
more  than  the  firm  was  entitled  to :  so  in  this  case,  it  was  a  payment  to  a 
co-executor,  supposing  him  entitled  to  receive  it  for  his  son's  legacy. 

The  case  of  Joy  v.  Campl^ell,  1  Sch.  &  Lef.  328,  maintains  the  same 
position.  At  page  341,  Lord  Chancellor  Rcdcsdale  states  the  rule  with 
his  accustomed  fulness  and  clearness.  "  The  distinction,"  he  says,  "  seems 
to  be  this  with  respect  to  a  mere  signing  :  that  if  a  receipt  be  given  for  the 
mere  purposes  of  form,  then  the  signing  icill  not  charge  the  person  not 
7-eceiving ;  but  if  it  be  given  under  circumstances  purporting  that  the 
money,  though  not  actually  received  by  both  executors,  was  under  the 


226  SOUTH   CAROLINA   EQUITY    REPORTS.  [*291 

control  of  both,  such  a  receipt  shall  charge ;  and  the  true  question  in  all 
those  cases  seems  to  have  been  whether  the  money  xvas  under  the  control 
of  both  executors :  if  it  was  so  considered  by  the  person  paying  the 
money,  the  joining  in  the  receipts  by  the  executor,  who  did  not  actually 
receive  it,  amounted  to  a  direction  tnimy  his  executor,  for  it  could  have  no 
other  meaning;  he  became  responsible  for  the  aj^ylication  of  the  money 
just  as  if  he  had  received  it.  But  this  does  not  apply  to  what  is  done  in  the 
of  the  discharge  of  a  necessary  duty  of  the  executor."  This  clear  view 
rule  is  in  exact  accordance  with  all  the  previous  authorities  ;  and  carries 
out  and  enforces  the  explanations  and  application  which  I  have  given  or 
made.  Test  the  case  before  us  by  Lord  Chancellor  Redesdale's  criterion, 
"  whether  the  money  was  under  the  control  of  both  executors,"  and  it 
will  be  seen  that  Dr.  Garden's  liability  is  fixed  beyond  all  doubt :  he  had 
the  control  of  the  money  until  he  paid  it  over  to  his  co-executor  on  a 
mistaken  view  of  his  power  to  receive  it  for  his  son,  and  it  follows,  that 
having  had  the  control  he  is  liable  for  it.  It  cannot  be  necessary  to  mul- 
tiply authorities  to  establish  a  rule  which  is  now  conceded  by  all  the  law 
and  equity  writers  to  be  settled  law.  But  it  is  said  that  there  is  a  dis- 
tinction in  the  application  between  a  creditor  plaintiff  and  a  legatee 
plaintiff:  as  I  have  already  said,  that  distinction  cannot  be  maintained. 
The  case  of  Sadler  v.  Hobbs,  which  I  have  already  stated  and  commented 
on,  shows  that  the  application  of  the  rule  is  allowed  even  in  the  case  of 
a  residuary  legatee  plaintiif,  and  the  Lord  Chancellor,  in  that  case, 
speaking  of  the  distinction  in  the  reasoning  of  Lord  Chancellor  Harcourt, 
^QQo-i  ill  the  case  of  Churchill  v.  Hobson,  1  P.  Wms.  *241,  calls  it  (as 
^  J  it  deserves  to  be  called)  an  odd  distinction.  But  as  Chancellor 
Harcourt's  remark  in  Churchill  v.  Hobson  was  a  mere  dictum  and  not 
the  point  ruled,  it  could  not  have  created  the  doubt  which  does  seem  to 
have  existed  on  the  subject.  It  is  referrable  more  probably  to  the  case 
of  Westley  t'.  Clarke,  before  Lord  Northington,  1  Eden,  357  ;  but  although 
it  had  the  effect  to  relax  the  old  rule,  yet,  as  the  editor  observes  in  his 
note  to  the  case  of  Saddler  v.  Hobbs,  "that  rule  seems  now  to  be 
restored."  The  case  of  Bacon  v.  Bacon,  5  Ves.  331,  is  no  authority  for 
the  distinction  between  creditors  and  legatees  as  to  the  liability  of  co- 
executors;  there  i\\Q  payment  to  the  unqualified  co-executor  was  sus- 
tained, not  on  account  of  his  chai'acter  as  executor,  but  because  he  was 
the  testator's  attorney,  and  the  payment  to  him  was  in  the  regular  course 
of  business.  I  am  not  prepared  to  say  that  a  case  decided  under  its 
special  circumstances,  (as  that  case  was,)  is  ever  authority  for  any 
purpose ;  but  it  is  clear,  without  utterly  condemning  it,  that  it  proves 
nothing  in  this  case.  In  Doyle  v.  Blake,  2  Sch.  &  Lef  229,  the  bill 
was  by  the  legatees  against  the  solvent  and  surviving  executors  who  had 
renounced  in  favor  of  the  now  deceased  executor,  Horan,  who  afterwards 
obtained  administration  cum  testamento  annexo,  received  and  wasted 
the  funds  and  became  insolvent;  it  was  ruled  that  they  were  liable  for  his 
acts.  In  the  case,  Lord  Redesdale  says,  "  Legatees  are  bound  by  the 
terms  of  the  will ;  creditors  are  not  so  ;  and  therefore  in  many  cases 
executors  would  be  discharged  as  against  legatees,  though  not  as  against 
creditors." 

This,  regarded  as  an  abstract  proposition,  is  a  startling  one ;  but  when 
explained  by  the  subject-matter  of  which  the  Lord  Chancellor  was  speak- 
ing, is  plainly  right.     The  testator,  in  the  case  then  before  him,  had 


*2D2]  CHARLESTON,   MARCH,    1835.  227 

directed  all  the  funds  to  be  deposited  with  the  co-executor,  Horan,  as 
trustee  for  the  legatees.  It  is  clear,  beyond  all  doubt,  that  sucli  a  pay- 
ment to  him  under  the  will  would  have  been  good  against  the  legatees: 
for  as  between  them  and  the  other  executors,  Horan  would  have  been, 
under  the  will,  the  agent  of  the  legatees  in  the  receipt  of  the  mouey,  and 
they  would  have  been  bound  ;  but  creditors  would  not  have  been,  for 
he  had  no  right  to  receive  as  trustee  until  the  debts  were  paid.  With 
this  explanation,  the  case  is  consistent  with  itself  and  all  the  previous 
cases.  For  in  the  point  ruled  by  the  decision  of  the  case,  (as  I  have 
already  stated  it,)  and  the  Lord  Chancellor's  reasoning  *at  242,  r:;:293 
it  is  a  direct  authority  in  support  of  the  general  and  old  rule.  L 
But,  as  was  well  said  in  the  argument,  the  case  of  Langford  v.  Gascoyne, 
11  Ves.  333,  uproots  the  distinction  supposed  to  exist  between  creditors 
and  legatees.  That  was  a  bill  by  a  widow  claiming  to  be  a  legatee  for 
life,  and  the  general  residuary  legatees.  There  were  three  executors, 
Gascoyne,  Lambert  and  Spurrell :  the  day  after  the  testator's  funeral,  the 
three  executors  met  at  his  house.  His  widow  brought  out  to  them  a  bag 
of  money,  and  on  being  advised  not  to  trust  it  to  Gascoyne,  she  delivered 
it  to  Spurrell  in  the  presence  of  the  other  two.  He  counted  it  and  handed 
it  to  Gascoyne.  It  was  held  by  the  Master  of  the  Rolls,  Sir  William 
Grant,  that  Spurrell  was  liable.  He  says,  "  The  rule  in. all  the  cases  is, 
that  if  an  executor  does  any  act  by  which  money  gets  into  the  possession 
of  another  executor,  the  former  is  equally  answerable  with  the  other  ;  not 
where  an  executor  is  merely  passive,  by  not  obstructing  the  other  in 
receiving  it."  In  the  case  of  Monell,  et  al.,  v.  Monell,  5  J.  C.  R.  283-8, 
Chancellor  Kent,  speaking  of  this  subject,  said,  "a  rule  once  prevailed  in 
England  which  was  recognised  in  Pennsylvania,  (1  Dallas,  311,)  that 
either  of  two  executors  who  had  executed  receipts  for  assets,  was  liable  to 
the  legatee  for  the  amount  only  actually  received  by  him.  But  that  rule 
is  ej'ploded,  and  the  doctrine  now  established  at  law  and  in  equity  is, 
that  if  assets  come  to  the  hands  of  one  executor  only,  but  both  join  in 
a  receipt  for  them,  both  are  equally  liable  to  legatees  and  creditors. 

In  this  State  no  distinction  has  ever  been  made  between  creditors  and 
legatees.  In  Evans  v.  Evans,  1  Eq.  Rep.  520,  Chancellor  Rutledge, 
speaking  of  the  liability  of  executors  for  joint  acts,  although  only  one 
received  the  money,  said,  "As  they  were  all  consenting  and  joined  in  the 
sale,  they  must  all  be  responsible  for  the  debts,  but  not  one  for  the  sejm- 
rate  act  of  the  other.'''  In  Lenoir  v.  Winn,  4  Eq.  Rep.  65,  and  in  another 
case  in  the  same  book,  92,  the  rule  is  loosely  stated,  but  most  obviously 
in  reference  to  it  as  stated  by  Chancellor  Rutledge  in  the  case  of  Evans 
V.  Evans,  and  in  the  English  authorities.  It  is,  I  think,  therefore  clear 
beyond  all  doubt  from  this  array  of  authorities,  that  in  a  suit  by  a  legatee 
as  well  as  a  creditor,  both  at  law  and  in  equity,  "that  where  by  an  act 
done  by  one  executor,  any  part  of  the  estate  comes  to  the  hands  of  his 
co-executor,  the  former  will  be  answerable  for  the  latter,  iu  *the  rj^^Qi 
same  manner  as  he  would  have  been  for  a  stranger  whom  he  had  ^ 
enabled  to  receive  it." 

But  it  was  contended  that  admitting  this  to  be  true,  yet  that  the  plain- 
tiifs  were  not  entitled  to  recover,  because  the  executor  has  misapplied, 
and  therefore  wasted  the  fund,  and  that  their  intestate  having  received 
his  residuary  legacy,  could  not  have  been  called  upon  by  the  legatee, 
Theodore  Brailsford,  to  pay  his  legacy  :  and  that  therefore  the  payment, 


228  SOUTH    CAROLINA    EQUITY    REPORTS.  [*294 

by  Dr.  Johnson,  was  altogether  voluntary ;  and  the  case  of  Lupton  v. 
Lupton,  2  J.  C.  R.  614-627,  was  cited  in  support  of  this  position.  It 
does,  beyond  all  doubt,  prove  that  where  the  executor  has  wasted  the 
assets,  that  a  legatee  who  has  been  paid  must  refund  to  a  creditor,  but 
cannot  be  compelled  to  contribute  to  make  up  a  legacy  to  a  co-legatee. 
But  the  authority  has  no  application  to  this  case.  A  part  of  the  assets 
of  Mary  Johnson,  deceased,  were  unadrainistered  and  in  the  hands  of  the 
surviving  executor  at  the  time  the  guardian  of  young  Brailsford  demanded 
payment.  He  was  legally  liable  to  meet  the  demand.  For  there  had 
been  no  sufficient  legal  payment  to  the  legatee ;  and  having  assets  of 
the  estate  in  his  hands,  equal  to  and  beyond  the  amount  claimed,  he  had 
no  cause  to  allege  why  he  should  not  pay  the  legacy  and  the  interest 
due  thereon.  The  plaintiffs  could  not  object  to  the  allowance  of  this 
payment  in  the  accounts  of  the  surviving  executor,  and  hence  they  had  a 
right  to  call  on  the  other  executor.  Garden,  for  the  amount  he  had  mis- 
applied. It  was  a  part  of  the  estate  of  Mary  Johnson,  and  in  legal  con- 
templation in  the  hands  of  Garden.  He  is,  therefore,  plainly  accountable 
to  the  plaintiffs.  Sadler  v.  Hobbs,  2  B.  C.  C.  114.  The  executor. 
Garden,  being  accountable  for  the  $1000  paid  by  him  to  Robert  Brails- 
ford  for  his  legacy,  I  think  he  must  account  for  it  with  interest  from  the 
time  he  paid  it, to  Brailsford.  The  legacy  and  interest  was  properly  paid 
by  the  surviving  executor.  For  there  can  be  no  pretence  that  the  interest, 
wliile  it  was  in  the  father's  hands,  was  applied  to  the  maintenance  of  his 
son.  The  father  made  no  such  charge.  Garden  cannot  make  it  for 
him.  But  if  this  had  been  contended  for  by  the  representatives  of  the 
father,  it  would  not  have  been  sustained.  For  so  long  as  the  father  was 
of  sufficient  ability  to  maintain  his  child,  it  was  his  duty  to  do  so.  Myers 
I).  Myers,  2  M'C.  C.  R.  264.  There  is  no  proof  or  assertion  that  there 
was  any  inability  to  do  so.  His  insolvency  probably  developed  itself 
after  his  death. 

*'>QFi1  *^*  Grarden's  liability  to  account  for  the  amount  of  the  sale  of 
"^  J  the  perishable  articles,  with  the  interest  thereon,  results  from  the 
view  which  I  have  taken  of  his  liabilty  to  account  for  the  $1000.  In 
this  respect,  however,  there  are  some  additional  circumstances  making  it 
still  plainer.  He  applied  for  and  obtained  the  order  for  sale,  and  returned 
the  sale  bill.  Each  of  these  acts  he  did  as  executor  without  even 
noticing  any  other' person.  They  cast  upon  him  the  burthen  of  account- 
ing for  the  proceeds  of  the  sale.  It  was  no  answer  to  say  that  a  part  or 
the  whole  thereof  had  been  received  by  his  co-executor,  unless  he  could 
also  have  shown  that  the  co-executor  received  it  against  his  will.  This, 
however,  is  not  pretended,  and  it  follows  that  Garden's  liability  is  on  the 
clearest  principles  made  out. 

7.  I  think  there  is  no  doubt  that  the  late  Dr.  Garden  is  liable  to  the 
account  for  waste,  both  as  tenant  for  life  of  the  whole,  and  as  tenant  in 
common  of  the  remainder  in  fee.  This  is  not  an  application  to  stay 
waste,  but  for  an  account  of  whatever  may  have  been  committed.  In 
general,  it  may  be  admitted  that  one  tenant  in  common  cannot  have  an 
injunction  against  his  co-tenant.  But  even  between  them,  under  special 
circumstances,  the  Court  might  grant  an  injunction.  As  where  the 
waste  was  destructive  to  the  estate,  and  not  within  the  usual  and  legiti- 
mate enjoyment.  Hole  u.  Thomas,  7  Ves.  589;  Twort  d.  Twort,  16  Ves. 
12S.    And,  as  in  the  case  of  Hawley  v.  Clowes,  2  J.  C.  R.  122,  where  the 


*295]  CHARLESTON,   MARCH,   1835.  229 

tenant  in  common  in  possession  was  cutting  down  tlic  timber  and  tlireaten- 
ing  to  jicrsevere.  This  last  case  carries  the  proposition  further  than  I 
should  be  willing  to  sanction  :  it  ought,  I  think,  to  l)e  shown  that  the 
cutting  down  the  timber  was  not  necessary  to  the  enjoyment  of  the  estate, 
and  would  (jreatly  prejudice  the  interest  of  the  co-tenant.  But  without 
dwelling  further  on  a  view  of  this  part  of  the  case  not  necessary  to  the 
decision  of  the  point  now  in  dispute,  I  will  proceed  to  state  the  grounds 
upon  which  the  defendant  is  liable  to  an  account  for  waste. 

In  several  cases  in  this  State  it  has  been  held  that  a  tenant  in  common 
may  use  the  estate  to  the  extent  of  his  interest  in  it :  and  in  the  case  of 
Kerr  and  wife,  et  al.,  v.  Robertson,  it  was  held  (by  my  bretliren)  that  for 
woodland  cut  down  and  cultivated  by  one  tenant  in  common,  he  was  not 
liable  to  account  to  his  co-tenant  for  rent,  but  that  the  remedy  of  the 
latter  would  be  for  waste.  In  Backler  v.  Farrow,  ante,  111,  (at  the  last 
term  in  Columbia,)  it  was  held  that  *co-tenants  who  had  cut  down  r^^nrt 
and  worn  out  a  portion  of  the  land  much  beyond  their  shares,  ^  "" 
were  liable  in  equity  to  account  for  the  waste,  and  the  Commissioner 
having  reported  a  sum  certain  as  to  the  value  of  the  waste  committed,  the  ' 
defendants  were  ordered  to  pay  it.  These  cases  sufficiently  show  the 
%  right  of  the  plaintiffs  to  come  here  against  the  representatives  of  their 
intestate's  co-tenant  for  an  account  for  the  waste  by  him  committed.  It 
only  remains  to  inquire  what  is  waste  ?  and  is  it  made  out  here  ?  Accord- 
ing to  the  English  authorities,  cutting  down  woodland,  interspersed  as 
our  forests  universally  are  with  timber  trees,  would  be  waste.  But  there 
has  been  some  modification  of  this  rule  in  this  State.  Several  cases  have 
been  decided  on  the  subject — two  I  recollect  pretty  well,  and  will,  from 
memory,  (as  we  have  no  reports  of  them,)  state  the  princii)k'S  by  which 
they  were  decided.  In  Milam  v.  Byrd  and  wife,  Mrs.  Byrd  was  tenant 
for  life  of  her  former  husband's  estate,  consisting  of  a  plantation  and 
negroes.  It  was  alleged  that  her  second  husband  had  brought  his  own 
negroes  on  the  plantation,  and  with  thorn  and  the  negroes  of  his  wife  that 
he  was  cutting  down  large  l)odies  of  the  woodland.  He  was  restrained 
from  cutting  down  the  land  for  the  employment  of  his  own  negroes ;  but 
he  and  his  wife  were  allowed,  with  her  negroes,  to  cut  down  as  much  land 
as  a  prudent  man,  the  owner  of  the  fee,  would  do  in  a  course  of  good 
husbandry.  It  was  made  the  subject  of  reference  to  ascertain  the  present 
or  future  quantity  to  be  cleared.  In  Nuckoll's  r.  M'lvie,  a  large  tract  of 
land,  principally  in  the  woods,  was  devised  to  Mrs  M'Kie  for  life,  and 
after  her  death  to  the  plaintiffs.  She  not  only  cleared  a  i)ortiou  herself, 
but  settled  many  tenants  on  different  parts  of  the  land.  Her  tenants  were 
restrained  from  clearing  the  land,  but  she  was  permitted  to  cut  down  and 
cultivate  the  land  for  her  own  use  and  support 

These  cases  leave  the  rule  perhaps  still  too  vague,  and  do  not  reach 
the  case  of  a  tenant  in  common.  But  when  taken  in  connection  with  the 
cases  fixing  the  right  of  a  tenant  in  common  to  the  use  of  the  estate  to 
the  extent  of  his  interest  and  his  liability  to  account  for  waste  committed, 
I  think  we  may  deduce  the  rule  to  be — that  where  a  tenant  in  common, 
by  cutting  down  and  clearing  woodland,  beyond  his  interest,  has  greatly 
injured  the  interest  of  his  co-tenant,  he  would  be  liable  for  waste.  And 
so  if  the  *tenant  for  life  cuts  down  more  woodland  than  is  neces-  ri^na^ 
sary  for  the  enjoyment  of  his  estate,  and  has  injured  the  remainder,  L 
he  would  be  guilty  of  waste,  and  liable  to  the  account.  It  is  the  ultimate 
\^0L.  1.— 38 


230  SOUTH    CAROLINA    EQUITY    REPORTS.  [*2''7 

iiiinry  done  to  the  rights  of  the  plaintiffs,  as  co-tenants  or  in  remaindev, 
wiiich  gives  them  the  right  to  complain.  For  if  the  clearing  of  the  land 
had  improved  its  value  to  the  co-tenant  or  remainder-man,  it  could  not 
be  pretended  that  still  the  co-tenant,  or  tenant  for  life,  would  be  liable 
for  waste. 

It  now  remains  to  be  considered  whether,  according  to  this  rule,  Dr. 
Garden  was  guilty  of  waste.  Under  the  clauses  of  the  will  of  Thomas 
N.  Johnson,  sen.,  deceased,  already  cited,  he  had  a  life  estate  in  the  land 
of  his  wife,  Sarah,  and  according  to  the  construction  placed  upon  the 
same  by  the  Court  of  Equity,  he  was  also  entitled  to  one-sixth  in  fee. 
There  are  no  words  in  the  will  which  would  exempt  him  from  the  im- 
peachment of  waste.  If  it  should  turn  out  that  there  was  no  cleared  land 
on  the  plantation  when  Dr.  Garden  went  into  possession,  then  it  is 
probable  that  he  did  not  clear  more  than  was  necessary  to  the  enjoyment 
of  his  life  interest,  and  did  not  exceed  his  interest  as  tenant  in  common, 
]^ut,  as  is  most  probable  from  the  testimony,  there  was  a  cleared  planta- 
tion sufficient  for  the  employment  of  the  slaves  of  his  wife,  in  which  he 
also  had  an  estate  for  life,  then  it  is  clear  that  the  clearing  of  sixty  acres 
of  woodland  in  the  centre  of  the  tract,  not  leaving  timber  enough  upon 
the  whole  land  to  repair  the  plantation,  and  which  the  witnesses,  (Nelson 
and  Havin,)  say  was  an  injury  of  $500,  would  be  waste.  But  as  it  may 
be  that  the  Commissioner  did  not  ascertain  the  precise  injury  done  to  the 
remainder  of  five-sixths  in  fee  by  the  clearing  at  the  time  the  life  estate 
fell  in,  the  report  will  be  left  open  for  further  examination  on  this  point, 
under  the  rules  laid  down  in  this  opinion. 

8.  Under  the  former  decree,  the  plaintiffs  are  plainly  entitled  to  the 
account  of  five-sixths  of  the  rent  of  the  land,  and  half  of  the  hire  of  the 
negroes.  For  this  bill,  although  not  a  bill  of  reviver,  sets  out  the  former 
decree,  and  with  the  immense  mass  of  other  matter  brought  to  the  view 
of  the  Court,  claims  that  it  should  be  executed.  This  was,  I  think, 
proper  where  the  bill  embraced  new  matter :  if  it  had  barely  proceeded 
on  the  former  decree,  then  that  case  ought  to  have  been  revived.  In 
taking  the  account  under  the  former  decree,  the  Commissioner  must 
observe  that  Hext  and  Mrs.  Miles,  the  adult  defendants,  are  alone  liable 
*9qQi  t^  ^^6  *charged  therein.  They  were  in  possession  of  the  property, 
-^  and  they,  not  the  minor,  are  properly  chargeable. 

In  making  up  the  accounts  against  Dr.  Garden,  the  Commissioner 
will  deduct,  from  the  eventual  balance  against  him,  the  amount  of  $470, 
which  his  estate  was  entitled  to  receive  from  Thomas  N.  Johnson,  the 
younger,  under  the  decree  confirming  the  partition  of  the  land  and  per- 
sonal estate  of  his  first  wife,  Sarah,  with  interest  from  the  date  of  the 
decree  of  confirmation. 

It  is  ordered  and  decreed  that  Chancellor  Johnston's  decree  be  modi- 
fied according  to  the  views  expressed  in  this  opinion ;  and  that  the  case 
be  remanded  to  the  Commissioner,  with  instructions  to  restate  the 
accounts  according  to  the  principles  and  directions  herein  contained  : 
and  that  the  defendants  may,  by  other  and  additional  testimony,  dis- 
charge themselves ;  to  which  the  plaintifts  are  permitted  to  reply  :  and 
where  necessary  under  this  opinion,  testimony  in  explanation  of  facts  of 
the  case  which  are  doubtful  upon  the  former  proof,  may  be  received  by 
the  Conimi.ssioner.     Let  the  costs  be  paid  out  of  the  estate  of  Garden. 

Johnson,  J.,  and  Harper,  J.,  concurred. 


CASES    IN   CHANCEUY 

ARGUED     AND     DETERMINED     IN     THE 

COURT  OF  APPEALS  OF   SOUTH  CAROLINA. 

Columbia — P^ag,  anb  |une,  1835. 


JUDGES  PRESENT. 


Hon.  DAVID  JOHNSON,  President. 
Hon.  J.  B.  O'NEALL.     I      Hon.  WILLIAM  HARPER. 


Langdon  Cheves,  Ex'or  of  Anne  Lovell,  and  M.  E.  Ciieves,  his 
Wife,  V.  Edward  Richardson,  Joseph  Dallas,  and  otliers. 

Testatrix  devised  to  her  grand-niece,  viz:  "one  thousand  acres  of  land,  to  be  taken 
off  my  plantation  called  Good  Hope,  to  be  run  off  conveniently  adjoining  the  place 
called  Cave  Hall  late  the  property  of  W.  C,  which  said  plantation,  called  Cave 
Hall,  shall  be  purchased  and  paid  for  out  of  my  estate,  and  shall  be  given  to  my 
said  grand  niece,  making  in  all  fourteen  hundred  acres:" — ILId,  that  this  was 
a  devise  of  the  whole  plantation  called  Cave  Hall  although  coutaiuing  one  thou- 
sand five  hundred  and  fifty  acres,  or  its  equivalent;  and  the  executor  was  ordered 
to  make  the  purchase  for  the  benefit  of  the  devisee.  [*3G2] 

This  bill  was  filed  for  the  purpose  of  partition,  distribution  and  settle- 
ment of  the  estate  of  Mrs.  Anne  Lovell,  late  of  St.  Matthew's  Parish, 
who,  by  certain  settlements  entered  into  between  her  husband  and  trustees 
on  her  part,  was  authorized  by  deed  or  will,  to  dispose  of  her  estate. 
The  only  point  in  dispute  was  the  construction  to  be  given  to  the  follow- 
ing clause : — 

"Item. — I  give  and  bequeath,  limit  and  appoint  to  my  grand-niece, 
Rachel  Susan  Bee,  one  thousand  acres  of  land  to  be  taken  off  ray  lower 
plantation,  which  is  called  Good  Hope,  and  purchased  of  Joseph  Mani- 
gault,  situate  on  the  half-way  swamp  The  said  thousand  acres  to  be 
run  off  conveniently  adjoining  the  place  called  Cave  Hall,  late  the  pro- 
perty of  William  Caldwell,  which  said  plantation,  called  Cave  HaH,  shall 
be  purchased  and  paid  for  out  of  my  estate,  and  shall  be  given  to  Rachael 
Susan  Bee,  my  grand  *niece  aforesaid,  making  in  all,  fourteen  t^^qq 
hundred  acres ;  provided  the  said  Rachael  Susan  Bee  be  living  at 
the  time  of  my  death." 

Rachael  Susan  Bee  survived  the  testatrix  ;  and  it  was  referred  to  the 
Commissioner  to  report  whether  the  said  plantation  called  Cave  Hall, 
could  be  purchased,  and  at  what  price — what  quantity  of  acres  it  con- 
tained, whether  the  proprietor  would  sell  four  hundred  acres  thereof,  and 
in  case  he  will  not,  to  report  the  value  of  four  hundred  acres ;  and  which 


232  SOUTH    CAROLINA    EQUITY    REPORTS.  [*3()0 

would  be  more  advantageous  to  the  devisee,  (in  case  such  a  construction 
should  be  given  to  the  will,)  the  specific  purchase  of  four  hundred  acres, 
part  of  Cave  Hall,  or  the  payment  by  the  executor  of  the  value  thereof. 

The  Commissioner  reported,  "  That  Cave  Hall  contained  one  thousand 
five  hundred  and  fifty  acres,  of  which  seven  hundred  acres  are  supposed 
to  be  highland,  and  the  remainder  swamp. — (Santee.)  That  the  price 
demanded  for  the  whole  tract,  by  Mr.  Paul  Warley,  the  owner,  is  two 
dollars  per  acre,  or  three  thousand  one  hundred,  dollars,  which  the  parties 
agree  in  thinking  not  an  unreasonable  price  under  all  the  circumstances 
of  the  case  :  and  the  Commissioner  was  of  the  opinion,  that  if  the  pro- 
prieter  would  divide  the  tract,  and  sell  four  hundred  acres  thereof,  one 
thousand  dollars  would  be  a  reasonable  price  for  the  same  :  but  the  pro- 
prietor refused  to  do  so,  and  this  refusal,  the  Commissioner  supposes, 
makes  it  unnecessary  to  consider  the  last  point  referred,  viz,.  :  which 
would  be  most  advantageous  to  the  devisee,  the  specific  purchase-of  the 
quantity  of  four  hundred  acres,  or  the  payment  by  the  executor,  to  the 
use  of  the  devisee,  of  the  reasonable  value  of  the  last-mentioned  quantity." 
Upon  the  report  coming  before  the  Chancellor,  it  was  contended  by  the 
executor,  that  it  was  the  intention  of  the  testator  only  to  give  four  hun- 
dred acres  of  Cave  Hall,  which,  added  to  the  one  thousand  acres  of  Good 
Hope,  the  adjoining  plantation,  would  make  only  fourteen  hundred 
acres. 

For  Miss  Bee,  it  was  contended  that  a  devise  was  a  common-law  con- 
veyance :  that  this,  in  Chancery,  would  be  considered  as  a  devise  of  Cave 
Hall  plantation  ;  and  though  the  testatrix  might  have  been  mistaken  as 
to  the  number  of  acres,  still  the  words  would  carry  the  whole  plantation  : 
four  hundred  acres,  part  of  Cave  Hall,  was  not  a  compliance  with  the 
will,  which  directs  the  purchase  of  the  "plantation  called  Cave  Hall, 
late  the  property  of  William  Caldwell." 

;^.T^,-|  *De  Saussure,  Chancellor.  The  question  made  and  submitted 
-^  for  the  judgment  of  the  Court  wns,  whether  Miss  Bee,  the  devisee, 
was  entitled,  under  the  will  of  Mrs.  Lovcll,  to  have  the  whole  of  the  tract 
called  Cave  Hill  purchased  for  her,  or  only  four  hundred  acres  thereof, 
or  the  value  of  the  same,  if  it  cannot  be  purchased.  There  is  no  rule 
more  clear  or  fixed,  than  that  the  intention  should  prevail  in  the  con- 
struction of  wills  as  well  indeed  as  of  contracts. 

The  great  qualification  to  this  rule  is,  that  the  intention  of  the  devisor 
or  donor,  shall  not  prevail  against  some  known  and  clear  rule  of  law, 
founded  in  the  general  policy  of  the  country,  such  as  the  creation  of  a 
perpetuity. 

On  reading  the  will  of  Mrs.  Lovell,  it  is  obvious  that  it  was  her  inten- 
tion to  make  up  a  plantation  of  fourteen  hundred  acres  of  land  for  her 
grand-niece.  Miss  Bee ;  she  says  so  in  terms,  for  she  declares  that  one 
thousand  acres  shall  be  severed  from  her  plantation  called  Good  Hope, 
and  set  apart  for  Miss  Bee,  and  that  the  adjoining  plantation,  called  Cave 
Hall,  shall  be  purchased,  which,  added  to  the  said  thousand  acres,  makes 
in  all  fourteen  hundred  acres  for  her  said  niece.  It  appears  that  she  was 
mistaken  as  to  the  quantity  of  land  in  Cave  Hall  tract,  which  actually 
contained  fifteen  hundred  and  fifty  acres,  and  not  four  hundred  acres,  as 
she  supposed.     The  words  of  the  devise  were  there  used  under  a  clear 


*301]  COLUMBIA,  MAT,   1835.  233 

misapprehension  of  a  fact,  and  the  question  is,  Shall  we  give  eftect  to  the 
distinct  intention,  or  to  the  misapprehension  ?  I  think  we  are  bound  to 
give  effect  to  the  obvious  intention.  As,  however,  the  owner  of  Cave 
Hill  will  not  consent  to  sell  four  hundred  acres  of  that  tract,  it  will  be 
proper  to  allow  Miss  Bee  an  equivalent  in  money. 

It  is  therefore  ordered  and  decreed,  that  the  sura  of  one  thousand  dol- 
lars, as  reported  by  the  Commissioner  to  be  the  fair  equivalent  for  the 
said  four  hundred  acres,  be  paid  or  invested  by  the  said  executor  of  Mrs. 
Lovell,  for  the  benefit  of  Miss  Bee,  the  devisee,  so  as  to  be  a  productive 
fund  for  her. 

The  counsel  for  Miss  Bee  now  moves  to  reverse  the  decree,  ou  the 
ground  that  his  honor  was  wrong  in  not  directing  the  executor  to  purchase 
the  whole  of  Cave  Hall  plantation. 

JirCord,  for  the  appellant,  cited  Chamberlaine  v.  Turner,  Cro.  Car. 
129;  Gascoigne  v.  Barker,  3  Atk.  8;  Wrotesley  r).  Adams,  1  Plow.  191  ; 
8  East.  163;  Sugden  145;  Whitaker  v.  Whitaker,  4  Bro.  Ch.  Ca.  31  ; 
2  Atk.  369 ;  Broome  v.  Monk,  10  Yes.  597,  618. 

*Gregg,  contra,  cited  2  Swinb.  484 ;  Shep.  Touch.  623 ;  2  Roper  (-^qao 
on  Leg.  328,  330;  Philips  v.  Chamberlaine,  4  Ves.  jr.  51  ;  Hot-  l  ""^^"^ 
ham  V.  Sutton,  15  Yes.  319  ;  Milner  v.  Milner,  1  Yes.  Sen.  106  ;  Con- 
stantine  v.  Constantine,  6  Yes.  102. 

Harper,  J.  There  is  no  question  of  the  rule,  that  in  construing  wills 
we  must,  if  possible,  give  effect  to  the  intention  ;  but  the  intention  must 
be  collected  from  the  words  of  the  will  itself,  and  not  from  any  conjecture 
of  ours  as  to  what  the  testator  may  be  reasonably  supposed  to  have 
meant.  It  sometimes  happens  that  contradictory  or  inconsistent  instruc- 
tions are  expressed  in  the  same  will,  and  then  it  has  been  the  rule  to  give 
effect  to  the  general  or  predominant  intention,  even  at  the  expense  of 
that  which  is  particular  and  subordinate.  The  words  of  the  testatrix 
are,  that  the  "  said  plantation,  called  Cave  Hall,  be  purchased  and  paid 
for  out  of  my  estate,  and  shall  be  given  to  Rachael  Susan  Bee,  my  grand- 
niece  aforesaid."  Now,  if  it  had  stopped  here,  words  could  not  more 
clearly  express  the  intention  to  give  the  entire  plantation  called  Cave 
Hall.  Then  follow  the  words,  "making  in  all  fourteen  hundred  acres." 
If  there  is  anything  ambiguous,  it  is  in  these  latter  words.  I  think  this 
comes  within  the  rule  expressed  by  Cruise,  in  his  treatise  on  real  ])rop- 
erty,  treating  of  devises.  "  With  respect  to  additional  words,  the  Courts 
appear  to  have  always  been  disposed  to  adopt  the  rule  established  for  the 
construction  of  deeds,  namely,  that  where  there  is  a  correct  and  specific 
description  of  the  property  devised,  a  mistake  in  any  additional  words 
will  have  no  effect ;  but  where  the  first  description  is  merely  general,  these 
additional  words  will  be  considered  either  explanatory  or  respective  ac- 
cording to  the  intention  of  the  testator."  One  of  the  cases  referred  to  is 
that  of  Chamberlain  v.  Turner,  Cro.  Car.  129,  in  which  the  devise  was 
of  "the  house  or' tenement  wherein  Nichols  dwelleth,  called  the  White 
Swan."  The  jury  found  that  William  Nichols  occupied  the  alley  of  the 
said  house,  and  three  upper  rooms,  and  that  divers  other  persons  occupied 
the  garden  and  other  places  in  the  said  house.  It  was  held  that  the 
terms  "  house  or  tenement,  called  the  White  Swan,"  necessarily  implied 


234  SOUTH    CAROLINA    EQUITY    REPORTS.  [*302 

the  whole  house ;  and  the  words,  "  wherein  William  Nichols  dwelleth," 
did  not  abridge  the  devise.  Now  the  words,  "  the  plantation  called  Cave 
Hall,  late  the  property  of  William  Caldwell,"  seems  to  me  to  be  as  cer- 
-.  tain  and  specific  as  "  the  house  *or  tenement  called  the  White 
^"^-1  Swan."  In  Gascoigne  v.  Barker,  3  Atk.  8,  the  devise  was  of  "all 
my  lands,  tenements  and  hereditaments,  in  possession  or  reversion,  free- 
hold and  copyhold,  in  the  parish  of  Chiswick  or  elsewhere  in  the  county 
of  Middlesex,  (ivJtich  copyhold  lands  I  have  surrendered  to  the  uses  of 
my  will)."  There  was  part  of  the  premises  copyhold  not  surrendered, 
and  the  Chancellor  held  that  this  did  not  pass.  He  adds,  however,  that 
if  the  premises  had  been  devised  by  name,  "  messuages  with  the  appur- 
tenances called  the  King  of  Bohemia's  Head,"  the  whole  would  have 
passed,  and  he  would  have  held  the  subsequent  words  to  be  only  a  mis- 
take in  the  description.  In  Banks  v.  Denshire,  1  Yes.  63,  Lord  Hard- 
wieke  says  he  determined  the  case  of  Gascoigne  v.  Barker  with  great 
reluctance,  and  chiefly  on  the  word  "  which.^^  In  that  case  the  devise 
was  of  "  all  and  every  freehold  and  copyhold  lands,  tenements  and  here- 
ditaments, (having  surrendered  the  copyhold  to  the  uses  of  my  will),"  &c. 
The  testator  had  two  copyhold  estates,  one  of  which  he  had  not  surren- 
dered; but  it  was  held  that  both  passed. 

The  principle  is  explained  as  applied  to  a  deed,  in  Wrotesley  v.  Adams, 
Plow.  191,  that  if  there  be  a  certain  description  in  the  first  instance,  any 
other  description  is  superfluous.  That  was  a  lease  by  a  prior  and  con- 
vent of  "  all  their  farm  in  Brosley,  &c.,  noiv  in  the  tenure  and  occupation 
of  Roger  Wilcox."  It  is  said  that  this  word  (farm)  "is  a  capital  messu- 
age and  all  the  lands  lying  to  it,  and  signifies  the  chief  house  and  lands 
belonging  to  it,  and  not  a  common  house  ;  and  so  has  a  certainty  in  itself. 
And  when  it  goes  further  and  says,  in  the  tenure  and  occupation  of 
Roger  Wilcox,  this  is  of  no  eff"ect ;  for,  if  it  was  not  in  his  tenure  and 
occupation,  yet  it  should  pass,  for  there  is  a  certainty  in  the  thing  demised, 
viz.  :  the  farm  in  Brosley."  So,  if  I  make  a  release  of  White  Acre  in 
Dale,  which  I  have  by  the  descent  on  the  part  of  my  father,  and  I  had 
it  not  by  descent  on  the  part  of  my  father,  but  otherwise,  yet  the  release 
is  good."  If  this  had  been  a  conveyance  of  the  plantation  called  Cave 
Hall,  further  described  as  containing  four  hundred  acres,  no  doubt  the 
whole  must  have  passed. 

The  testatrix  clearly  expresses  her  intention  to  give  the  whole  of  Cave 
Hall  plantation  to  her  grand-niece  ;  but  she  was  mistaken  in  its  quantity. 
She  further  expresses  her  intention  to  make  up  for  her  a  plantation  of 
fourteen  hundred  acres.  It  was  supposed  that  complete  effect  could  be 
*304l  ^"^^^"^  ^^  ^^^  intention  by  purchasing  *four  hundred  acres  of  the 
Cave  Hall  plantation.  But  this  would  be  speculating  on  in- 
tention. What  part  shall  be  ])urchased  ?  That  contiguous  to  the 
one  thousand  acres  devised  ?  But  the  contiguous  part  might  be  diff'er- 
ently  selected  and  arranged,  so  as  to  vary  greatly  in  value.  Sup- 
pose there  are  valuable  buildings  and  improvements  on  the  land,  the 
testatrix  certainly  contemplated  that  the  devisee  should  have  these,  and 
may  have  made  the  devise  chiefly  with  a  view  to  them.  But  suppose 
them  to  be  so  distant  from  the  one  thoustind  acres  as  not  to  be  included 
m  the  contiguous  four  hundred  acres.  But  the  four  hundred  acres  can 
not  be  purchased.     The  object  of  the  testatrix  was  to  make  up  what  she 


*304]  COLUMBIA,  MAY,  1835.  235 

regarded  as  a  suitable  plantation  for  her  grand-niece.  Arc  we  likely  to 
approach  that  intention  more  nearly  by  giving  her  a  thousand  dollars  ia 
money,  rather  than  the  whole  of  Cave  Hall  plantation  ?  That  can  only 
be  matter  of  guess.  It  is  better  to  adhere  to  rule  than  thus  to  speculate 
on  intention. 

The  decree  of  the  Chancellor  is  therefore  reversed,  and  it  is  ordered 
and  decreed  that  the  executor  proceed  to  complete  the  purchase  of  the 
entire  plantation  called  Cave  Hall,  which  shall  be  conveyed  to  the  devisee, 
Rachel  Susan  Bee.     Costs  to  be  paid  out  of  the  estate. 

JoHNSCTN,  J.,  and  O'Neall,  J.,  concurred. 


James  Frazier,  and  Others,  v.  The  Executors  of  John  Frazier,  Dec'd. 

The  Act  of  1820  (p.  22j  relates  to  emancipation  within  the  State  only,  and  Joes  uot 
prohibit  the  removal  of  slaves  to  another  State  for  the  purpose  of  being  emanci- 
pated. [*314] 

The  owner  of  property  may  by  his  will  direct  his  executors  to  dispose  of  it  in  any 
way  he  could;  and  as  he  could  iu  his  lifetime  have  removed  his  slaves  to  another 
State,  and  there  have  emancipated  them,  he  may  by  will  direct  his  executors  to 
remove  and  emancipate  them.  [*3i5] 

Testator  by  his  will  directed  his  negroes  to  be  hired  out  during  the  life  of  his  wife, 
and  at  her  death  declares  "it  is  my  will  and  desire  that  the  whole  of  my  negroes 
be  set  free  by  my  executors,  and  the  amount  of  money  arising  from  the  hire  of 
the  said  negroes  be  equally  divided  among  them;  and  if  the  hire  does  not  amount 
to  one  hundred  dollars  each,  it  shall  be  made  up  out  of  the  other  part  of  my 
estate:  the  interest  of  the  money  is  to  enable  them,  with  the  assistance  of  govern- 
ment, to  go  to  St.  Domingo  to  be  colonized,  or  to  any  part  they  with  government 
may  choose." — Ileid,  that  the  intention  of  the  testator  was  that  his  slaves  should 
be  removed  to  parts  where  emancipation  is  lawful,  and  there  be  emancipated; 
that  such  will  was  legal  and  would  be  enforced:  and  on  a  bill  by  the  next  of  kin 
claiming  the  slaves,  the  executors  were  ordered  to  remove  to  parts  beyond  the 
State  where  emancipation  is  lawful  and  there  set  them  free;  that  they  defray  the 
expenses  of  removal  from  the  interest  on  the  one  hundred  dollars  bequeathed  to 
each  of  the  slaves,  and  that  they  pay  the  legacies  of  one  hundred  dollars  each  to 
them  after  being  so  emancipated.  [  ""SIS] 

The  testator,  John  Frazier,  by  his  will,  dated  14th  October,  1824, 
directs  all  his  estate,  real  and  personal,  except  his  negroes,  to  be  sold  on 
twelve  months'  credit  or  a  longer  time,  if  the  executors  should  think  it 
better  so  to  sell :  the  2-)rnceeds  of  the  sale,  and  the  money  due  to  the 
testator  at  his  death,  were  to  be  divided  among  his  executors  to  be 
severally  managed  by  them;  and  they  were  to  retain  to  their  own  use  all 
that  they  could  make  over  the  legal  interest  from  the  said  funds.  But  out 
of  these  funds  the  testator's  widow  was  to  be  comfortably  supported  during 
her  natural  life.  She  was  to  have  the  use  of  one  or  two  of  the  testator's 
slaves  during  life  to  *wait  and  attend  on  her  "  own  proper  person. "  i-^koqc 
The  other  slaves  were  directed  to  be  hired  out  during  the  lifetime  •- 
of  the  widow.  After  the  death  of  the  widow,  the  testator  directed  the 
balance  of  the  funds  of  his  estate  arising  from  the  sales  of  his  land  and 
the  personal  estate  and  money  due  to  him  at  his  death,  which  might  be 
left  after  maintaining  his  wife  during  life,  to  be  divided  between  James 
Frazier,  John  M.  Frazier,  James  Jetter,  John  Livingston,  John  Frazier, 


236  SOUTH   CAROLINA   EQUITY   REPORTS.  [*305 

son  of  Benjamin,  and  John  Gomillian,  subject  to  a  contribution  from  this 
fund  to  make  up  the  sum  of  $100  for  each  of  his  negroes,  if  the  fund 
arising  from  their  hire  should  be  insufficient.  The  will  then  proceeds, 
"  as  respects  the  hire  of  my  negroes,  it  is  my  will  for  ray  executors  to  hire 
out  my  negroes  and  see  that  they  are  treated  well  and  not  abused.  It  is 
ray  will  that  the  money  arising  from  the  hire  of  said  negroes  be  equally 
divided  among  my  executors  as  the  before-mentioned  part  of  my  estate, 
only  the  money  arising  from  the  hire  of  my  negroes  to  he  kept  entire 
and  distinct  from  the  other  part  of  my  estate  before-mentioned ;  and 
after  the  decease  of  my  ivife,  Nancy  Frazier,  it  is  my  ivill  and  desire 
that  the  whole  of  my  negroes  be  set  free  by  my  executors,  and  the 
amount  of  money  arising  from  the  hire  of  the  said  negroes  be  equally 
divided  among  the  said  negroes;  and  if  the  hire  dors  not  amount  to 
one  hundred  dollars  each,  that  it  shall  be  made  up  to  them  out  of  the 
other  part  of  my  estate  before-mentioned :  the  interest  of  the  money  is 
to  enable  them,  with  the  assistance  of  government,  to  go  to  St.  Domingo 
to  be  colonized,  or  to  any  part  that  they  with  government  may  choose.'" 

The  testator  appointed  John  S.  Jeter,  Benjamin  Frazier,  and  James 
Jeter,  executors.  The  two  last  named  qualified.  By  a  codicil,  dated 
4th  February,  1825,  the  testator  directed  that  if  his  man  slave,  Isaac, 
would  pay  to  his  executor  $600,  that  he,  his  wife  Lively,  and  his  daughter 
Haily,  "  shall  be  set  free  to  enjoy  liberty  forever :"  and  that  if  his  negro 
boy,  young  Isaac,  should  wish  to  be  set  free,  that  upon  the  payment  by 
him  of  $650  to  the  executors,  he  "  shall  be  set  free  and  enjoy  liberty  for- 
ever more. " 

The  testator  died  shortly  after  the  execution  of  his  codicil,  leaving  a 
widow  but  no  issue.  The  widow  died  in  1832,  and  shortly  after  Benjamin 
Frazier,  one  of  the  executors,  seized  the  negroes,  with  the  view  of  carry- 
ing the  will  into  effect. 

This  bill  was  filed  by  the  next  of  kin  of  the  testator,  claiming,  amongst 
*^nfi1  other  things,  the  negroes  and  an  account  for  their  hire,  *on  the 
-^  ground  that  the  provisions  in  regard  to  them  were  void,  as  being 
contrary  to  the  policy  and  laws  of  this  State. 

The  case  was  heard  at  Edgefield,  June,  1833. 

De  Saussure,  Chancellor.  The  questions  which  arise  for  the  present 
consideration  of  the  Court,  are  : — 

1.  Is  the  bequest  as  to  the  freedom  of  the  slaves  valid  and  effectual  ? 

2.  If  not,  who  are  entitled  to  them  ? 

On  the  first  question  I  have  no  doubt :  our  statute  forbids  the  emanci- 
pation of  slaves,  and  declares  the  act  null  and  void.  An  argument  was 
set  up  for  the  defendants,  which  was  urged  with  great  ingenuity,  and 
applied  with  great  talent.  It  was,  that  although  the  statute  forbade 
direct  emancipation,  it  did  not  forbid  a  direction  that  the  slaves  should 
be  sent  abroad,  and  there  emancipated  ;  and  that  a  direction  to  the 
executors  to  do  so,  raised  a  trust  in  them,  which  they  were  bound  to 
fulfil,  and  the  Court  would  enforce  it.  Upon  considering  this  argument, 
I  am  inclined  to  think  it  cannot  be  sustained. 

The  statute  is  founded  on  deep  policy,  and  was  intended  to  prevent 
emancipation  of  slaves  as  a  great  political  evil,  dangerous  to  the  institu- 
tions of  the  State,  and  injurious  to  the  property  and  interest  of  the  citizens. 


*306]  COLUMBIA,   MAY,   1835.  237 

I  am  aware  that  a  statute  is  not  to  be  enlarged  beyond  a  fair  and  reason- 
able construction  of  its  words  and  provisions,  in  order  to  give  effect  to 
some  supposed  recondite  meaning.  But  Courts  are  bound  to  look  to  the 
real  object  of  a  statute,  and  to  give  it  effect,  if  the  meaning  be  obvious  and 
the  provisions  of  the  statute  sufficient  to  cover  the  meaning.  In  the  case 
before  us,  it  is  quite  obvious,  the  object  and  intent  of  the  Legislature  was 
to  prevent  the  emancipation  of  the  slaves  held  in  the  State.  A  direction 
to  others  to  do  what  the  owner  is  prohibited  from  doing  cannot  be  per- 
mitted to  defeat  the  prohibition.  Such  an  easy  evasion  would  be  making 
the  statute  a  mere  cobweb.  The  frailty  of  the  argument  was  felt  by  the 
counsel,  who  therefore  endeavored  to  sustain  it  by  saying  the  executors 
might  and  were  bound,  as  trustees,  to  carry  it  into  effect,  by  sending  the 
slaves  out  of  the  State,  and  there  emancipating  them,  which  would  be 
effectual.  What  effect  a  will,  which  directed  slaves  to  be  sent  out  of  the 
State  and  there  emancipated  would  have,  need  not  be  now  decided  in  this 
case,  for  the  direction  to  the  executors  is  simply  *to  emancipate,  r*QA»T 
which  I  take  to  be  clearly  against  the  statute,  and  null  and  void.  ^ 
It  is  true  that  after  the  direction  to  set  the  slaves  free,  a  clause  is  inserted 
providing  a  fund  for  them,  which  was  to  enable  them,  with  the  assistance 
of  the  government,  to  go  to  St.  Domingo,  to  be  colonized,  or  to  any  part 
that  they  and  the  government  may  choose.  This  provision  is  an  incidental 
one,  and  not  a  direct  order  to  make  an  application  to  the  Legislature  for 
permission  to  liberate  the  slaves  and  send  them  abroad. 

The  liberation  is  not  made  conditional  and  dependent  on  the  will  of 
the  Legislature  to  confirm  the  emancipation.  It  is  an  absolute  direction 
to  the  executors  to  emancipate,  and  then  to  get  the  assistance  of  the 
government  to  be  colonized  at  St.  Domingo  or  elsewhere.  I  consider 
the  direction  to  emancipate  null  and  void  :  and  the  rest  of  the  provision 
depended  on  that.  Besides,  what  government  is  meant  ?  If  the  State 
government,  that  has  no  foreign  relations  with  St.  Domingo,  or  any  other 
power  or  dominion  by  which  it  could  give  its  assistance.  If  the  govern- 
ment of  the  United  States  be  meant,  assuredly  neither  the  State  nor  its 
authorities,  nor  any  of  its  citizens,  would  ever  permit  the  interference  of 
that  government  with  that  subject,  on  which  the  government  of  the  United 
States  has  no  right  to  intermeddle,  and  on  which,  if  it  made  any  attempts 
directly  or  indirectly,  a  disruption  of  the  bonds  which  bind  and  unite  the 
States,  would  necessarily  take  place.  It  is  the  noli  me  tangere  subject. 
Any  intermeddling  by  the  government  would  be  the  immediate  death  of 
the  Union  (however  valued  and  cherished  on  other  grounds)  by  the  general 
consent  of  the  citizens.  If  the  executors  choose  to  apply  to  the  State 
Legislature,  they  may  do  it.  But  till  that  be  done,  and  a  decision  be 
made  by  that  body,  I  feel  myself  bound  to  consider  and  treat  this  direc- 
tion to  executors  to  emancipate  slaves  as  an  attempt  to  evade  the  statute, 
and  merely  null  and  void.  Consequently  the  slaves  attempting  to  be 
emancipated,  remain  in  their  former  condition,  slaves.  2.  The  question 
then  arises,  who  are  entitled  to  these  slaves  ?  Three  claims  are  set 
up : — 1.  By  the  executors,  2.  By  ihe  residuary  legatees.  3.  By  the 
nearest  of  kin. 

His  Honor  then  went  into  an  examination  of  the  several  provisions  of 
the  will,  and  on  its  construction  held  that  the  next  of  kin  were  entitled 
to  the  negroes  and  their  hire,  and  decreed  accordingly. 


238  SOUTH  CAROLINA    EQUITY    REPORTS.  [*308 

*QnRl       *From  this  decree  the  defendants  appealed  on  the  ground  : — 

J  That  the  negroes  are  effectually  disposed  of  by  the  will ;  and 
the  trust  reposed  in  the  executors  to  remove  and  emancipate  the  negroes, 
is  not  ih  violation  of  the  laws  of  this  State. 

Bauskett,  for  the  appellants.  The  negroes  are  not  emancipated  by 
the  will — there  is  a  mere  direction  to  the  executors  to  remove  them  out  of 
the  State,  and  set  them  free.  The  will  was  executed  in  1824 ;  and  the  legal 
presumption  is,  that  this  was  done  with  a  knowledg-e  of  the  existing  laws 
against  emancipation  in  the  State  ;  it  had  reference  therefore  to  emancipa- 
tion beyond  its  limits.  Is  the  bequest  void  according  to  this  construction  ? 
The  Court  has  no  right  to  control  the  actions  of  its  citizens  without  the 
State.  If  the  executors  now  asked  leave  of  the  Court  to  remove  the 
negroes  for  the  purpose  of  emancipation,  it  would  be  a  different  question  ; 
perhaps  in  such  case,  the  aid  or  interference  of  the  Court  would  be  refused. 
But  the  aid  of  the  Court  is  not  asked — al^  that  is  required,  is  to  leave  the 
executors  uncontrolled — and  they  will,  according  to  their  oaths,  perform 
the  trust  imposed  on  them  by  the  will.  The  trust  is  not,  as  has  been  said, 
void,  for  it  is  not  in  violation  of  either  the  express  letter,  or  intention  of 
the  law  of  this  State.  The  Act  of  1820  is  the  only  statute  having  any 
application  to  this  subject.  It  is  manifest  from  the  preamble  of  this  act, 
that  the  mischief  intended  to  be  remedied,  was  the  emancipation  of  slaves 
icithin  the  State.  There  is  no  attempt  here  to  evade  the  act;  but,  in 
fact,  a  plain  direction  to  the  executors  to  conform  to  it — not  to  attempt 
its  violation,  but  with  certain  funds  set  apart  for  that  purpose,  and  with 
the  assistance  of  the  government,  to  remove  the  negroes  to  St.  Domingo, 
or  to  any  part  that  the  government  may  choose,  where  they  might  be 
lawfully  emancipated.  As  the  State  has  no  foreign  relations,  and  the 
government  of  the  United  States  cannot  interfere  in  this  subject,  the 
executors  or  the  negroes  themselves  may  choose  the  place  of  their  removal. 
In  Young  v.  Sylvester,  1  Bail.  632,  it  was  held,  that  but  for  the  act  of 
1820,  which  was  passed  after  the  death  uf  the  testator  in  that  case,  the 
executors  would  have  been  compelled  to  emancipate  according  to  the 
directions  of  the  will.  If  then  the  provisions  of  this  act  do  not  reach  this 
case,  the  executors  here  may  be  compelled  in  like  manner  to  carry  the 
trusts  of  the  will  into  effect.  The  testator,  in  his  lifetime,  beyond  all 
*3091  ^"^s^^on,  could  have  removed  his  negroes  to  *St.  Domingo,  or 
-J  anywhere  else,  and  have  emancipated  them.  The  Legislature 
neither  could  impose  restrictions  on  his  rights  in  this  respect,  nor  so 
intended.  If  he  had  such  rights  in  his  lifetime,  could  he  not  delegate 
them  by  will  to  his  executors  ?  What  prevents  ?  The  executor  is  the 
representative  of  his  testator,  invested  with  all  his  legal  rights — he  is  in 
law  the  owner  of  the  chattels,  and  may  dispose  of  them,  or  do  any  act  in 
relation  to  them  not  prohibited  by  law.  If  the  executors  in  pursuance 
of  the  will  had  removed  the  negroes,  would  the  Court  have  held  them 
accountable  ? 

The  law  of  the  domicil  governs  the  disposition  of  personal  estate,  and 
the  Courts  of  another  State  are  bound  to  notice  and  enforce  it.  Suppose 
the  testator  had  lived  and  died  in  Georgia,  and  by  his  will  had  given 
directions  to  his  executors  to  hire  out  his  negroes  in  South  Carolina 
during  the  life  of  the  widow,  and  at  her  death  to  take  them  back  to 


*309]  COLUMBIA,   MAT,    1835.  239 

Georgia,  and  there  set  them  free.  In  such  case,  the  executors  would  not 
only  have  the  right  to  perform  the  trust,  but  the  Courts  of  this  Slate 
would  be  bound  to  compel  its  performance. 

Waddy  Thoynpson,  on  the  same  side.  It  seems  to  me  that  this  case 
may  be  discriminated  from  that  class  of  cases  embraced  in  the  act  of  the 
Legislature  prohibiting  emancipation.  It  will  be  seen  that  the  will  does 
not  directly  emancipate  the  negroes,  but  directs  the  executors  to  do  it. 
Now,  it  is  said  in  the  decree  that  it  would  be  an  evasion  of  the  law  to 
allow  one  to  do  by  the  agency  of  another  what  he  could  not  do  himself; 
certainly  it  would.  What  is  the  conclusion  from  this  admission  ?  Why, 
that  the  executor  could  do  whatever  his  testator  could.  Now  the  tes- 
tator could  not  emancipate  the  negroes  in  this  State,  therefore  his  execu- 
tors could  not  emancipate  them  in  this  State ;  and  a  provision  that 
they  should  do  so  would  be  void.  But  on  the  other  hand,  the  testator 
could  have  removed  them  from  the  State,  and  then  have  emancipated — 
so  can  the  executor ;  and  a  bequest  directing  the  executor  to  do  so  would 
be  good.  Suppose  the  bequest  had  been  an  explicit  direction  to  the 
executors,  to  take  the  negroes  out  of  the  State,  to  some  State  where 
emancipation  was  tolerated,  and  there  to  manumit  them.  What  law  of 
the  State,  or  what  policy  of  the  State,  would  be  thereby  violated  ?  Would 
the  letter  of  the  law  be  violated  ?  And  let  it  be  remembered  that  this  is 
a  statute  in  restraint*  of  the  rights  of  the  citizen,  and  therefore  t^qiq 
to  be  strictly  interpreted,  and  not  extended  by  construction.  Its  •- 
prohibition  is  against  emancipating  in  this  State — there  is  no  prohibition 
against  removing  them  out  of  the  State,  nor  any  against  emancipating 
them  after  they  are  out,  nor  could  there  be.  What  is  the  evil  intended 
to  be  prevented,  if  even  the  Court  will  look  to  that  with  the  view  of 
extending  the  words  of  the  law  ?  not  the  removal  of  slaves  ;  for  on  that 
subject  there  would  be  much  diversity  of  opinion — at  all  events,  no  legis- 
lative prohibition  has  been,  or  ever  will  be  enacted  against  it.  What 
considerations  of  policy  are  there  to  influence  the  State,  to  desire  to  pre- 
vent emancipation  in  other  States  ?  With  the  domestic  institutions  or 
policy  of  other  States,  we  are  in  no  way  concerned,  and  have  no  sort  of 
right  in  any  way  to  interfere.  The  evil  intended  to  be  remedied  was  the 
accumulation  of  free  negroes  residing  amongst  us,  from  the  acts  of  eman- 
cipation of  their  owners.  This  was  all  that  the  State  had  any  interest  or 
power  to  prevent.  The  master  had  the  power  to  remove  his  negroes- 
why  has  not  the  executors  ?  Suppose  the  bequest  had  been,  that  his 
executors  should  remove  his  slaves  to  Alabama  to  plant  cotton — surely 
it  would  be  good.  Suppose  in  the  violence  of  our  opposition  to  the  tariff 
laws,  all  manufactories  of  cotton  goods  in  the  State  had  been  prohibited 
under  the  severest  penalties — a  bequest  that  his  executors  should  establish 
a  cotton  manufactory  in  the  State,  and  employ  his  slaves  as  operatives, 
would  have  been  cleavly  bad.  But  if  the  bequest  had  been  that  the 
negroes  be  taken  to  Georgia,  (where  there  would  be  no  such  law)  and 
there  thus  employed,  the  bequest  would  be  good.  The  laws  of  this  State 
prohibit  gaming,  and  the  keeping  of  gambling-houses — a  bequest  to  the 
executors  to  establish  such  a  house,  and  employ  his  capital  and  slaves  in 
the  establishment,  would  be  void.  But  I  apprehend,  that  if  the  bequest 
had  been  to  the  executors,  to  take  the  property  to  Louisiana,  and  there 


240  SOUTH    CAROLINA    EQUITY    REPORTS.  [*310 

establish  a  gaming-house  (where  such  things  are  legalized)  that  the  be- 
quest would  be  good.  A  bequest  that  they  be  taken  there,  and  the 
proceeds  of  their  sale  or  of  their  hire  invested  in  the  Commercial 
Bank  of  Louisiana  would  be  good  Why  not  equally  good  if  the  bequest 
were,  that  they  should  be  thus  invested  in  stock  in  a  faro-bank  which  is 
there  lawful;  and  in  which,  to  my  knowledge,  men  of  large  fortune,  who 
never  see  the  game  played  at  all,  invest  their  money  as  a  profitable  invest- 
ment? It  is  there  lawful,  and  deemed  as  fair  an  investment,  and  as  fair 
^o,,-i  a  risk,  *to  put  their  money  upon  the  issue  whether  an  ace  or  a 
-^  deuce  will  be  the  next  card  turned  up,  as  whether  a  house  will  be 
burned  down  in  a  given  time,  or  a  ship  going  to  sea  will  reach  its  destina- 
tion in  safety.  Here  our  notions  of  morals  and  of  policy  are  different, 
and  I  think  wisely — we  have  the  right  to  declare  what  shall  be  lawful, 
and  what  not,  and  a  provision  for  an  unlawful  purpose  is  void  ;  but  we 
have  no  right  to  say  what  shall  be  done  with  property  the  moment  it 
passes  beyond  the  control  of  our  laws,  and  as  certainly  none  to  prevent 
it  from  passing  beyond  that  limit.  The  testator  had  a  right  to  remove 
his  negroes  to  Alabama  to  make  cotton,  or  to  New  York  to  make  free- 
men— and  he  had  a  right  to  have  appointed  an  agent  in  his  lifetime,  to 
have  done  the  same  thing;  and  I  cannot  see  why  he  had  not  a  right 
to  appoint  an  executor  to  do  the  same  thing  after  his  death.  The 
executor  is  in  fact  strictly  the  agent  of  the  testator — the  agent  to  execute 
his  wishes  after  his  death  ;  as  an  attorney  in  fact  is  the  agent  to  do  the 
same  thing  whilst  he  is  alive. 

I  think  it  cannot  be  denied,  that  if  the  testator  had  expressed  in  so 
many  words  his  wish  that  his  executors  should  take  his  negroes  out  of 
the  State  and  emancipate  them,  that  it  would  have  been  a  valid  bequest, 
as  not  conflicting  with  any  provision  of  the  law,  nor  with  any  considera- 
tions of  public  policy.  Has  he  in  fact  expressed  such  an  intention  ? 
For  if  he  has,  and  that  intention  is  conveyed  by  the  words  used,  it  is 
sufficient.  It  seems  from  the  will,  that  the  testator  was  aware  of  some 
legal  impediment  to  emancipation  in  the  State — he  does  not  emancipate 
himself,  but  directs  his  executors  to  do  it.  Are  we  not  then  to  presume, 
that  knowing  the  difficulty,  he  intended  to  guard  against  it  ?  And  when 
he  creates  a  trust,  that  he  intended  as  far  as  in  him  lay  to  give  all  the 
powers  which  were  necessary  to  enable  his  trustees  to  execute  it  ?  One 
of  those  powers  was,  that  they  be  taken  out  of  the  State.  And  this  was 
not  an  independent  and  separate  provision,  but  necessarily  connected 
with  the  other.  They  were  not  to  be  set  free  immediately,  but  at  a  re- 
mote time ;  until  that  time,  to  be  hired  out,  and  that  not  for  the  benefit 
of  any  one  else,  but  solely  for  the  purpose  of  raising  a  fund  to  take  them 
out  of  the  country — for  the  fund  arising  from  their  hire  was  to  be  kept 
separate.  If  the  bequest  had  been  that  they  should  be  sent  to  New 
York,  and  then  sent  to  Liberia,  it  would  have  been  good — is  it  the  less 
*3121  Sood  because  there  are  inserted  the  words  that  they  *are  to  be  set 
"-'  free  ?  Where  set  free  ?  In  this  State  ?  What  is  there  to  show 
it  ?  Nothing — but  much  to  show  the  reverse.  I  will  not  contend  that  a 
general  direction  to  set  free  would  mean  a  direction  to  set  free  out  of  the 
State — but  admit  that,  in  the  absence  of  any  other  words,  such  a  provision 
would  be  construed  as  intending  to  set  free  in  the  State,  and  therefore 
void ;  still  I  do  contend,  that  there  is  indissolubly  connected  with  the 


*312]  COLUMBIA,   MAY,    1835.  241 

provision  to  set  free,  a  direction  to  send  out  of  the  State ;  and  tliat  the 
order  in  which  the  two  things  are  stated  in  the  will,  or  rather  in  the  same 
sentence,  is  in  no  wise  material — and  that,  to  say  that  they  be  set  free 
and  sent  to  Ohio,  is  the  same  ])recisely  as  to  say,  that  they  be  sent  to 
Ohio  and  set  free  :  and  the  more  especially  will  the  expressions  be  re- 
garded as  convertible,  when  by  such  construction  alone,  can  the  purpose 
of  the  testator  be  accomplished. 

D.  L.  IVardlaw,  contra.  The  construction  contended  for  is,  that  this 
is  a  bequest  to  remove  the  slaves  to  St.  Domingo  or  elsewhere,  settle  and 
emancipate  them.  Conceding  this  to  be  the  true  interpretation  of  the 
will,  how  is  it  to  be  enforced  ?  At  whose  instance  ?  In  contemplation  of 
law,  slaves  are  chattels,  things — they  have  no  civil  rights;  can  hold  no 
property,  nor  maintain  a  suit,  in  Court.  Should  the  executors  refuse  to 
perform  the  trust,  there  is  no  one  authorized  to  compel  them — the  Court 
cannot  interfere  but  in  the  regular  course  of  proceedure  at  the  instance  of 
the  cestui  que  trusts,  and  they  cannot  be  recognized  as  parties,  or  re- 
garded as  having  any  rights.  To  entertain  a  bill  at  their  instance,  the 
Court  must  recognize  persons  unknown  to  the  law,  and  actually  confer 
rights  on  mere  chattels.  The  case  is  totally  different  from  a  devise  to 
charitable  uses  in  mortmain  ;  for  there  is  no  one  here  capable  of  com- 
plaining to  the  Court.  If  then  the  Court  is  wholly  powerless  to  enforce 
such  a  bequest,  the  bequest  itself  must  be  void.  For  it  would  be  a  sole- 
cism in  terms,  to  say  that  the  bequest  is  valid,  the  trust  is  good,  with- 
out the  means  of  enforcing  it — a  right  without  a  remedy. 

But  the  construction  contended  for  on  the  part  of  the  defendants  is 
not  the  true  one.  It  is  not,  according  to  the  will,  a  bequest  to  remove, 
and  then  set  free  ;  but  first  to  set  free,  and  afterwards  to  remove  them 
to  St.  Domingo,  or  elsewhere,  with  the  assistance  of  the  government,  to 
be  colonized.  The  words  are,  "after  the  decease  of  my  wife,  &c.,  it  is 
my  will  and  desire,  that  the  whole  of  *my  negroes  be  set  free  by  r*oi o 
my  executors,"  &c.,  and  then  follows  the  direction  to  give  them  a  ^ 
hundred  dollars  each,  to  "  enable  them  to  go  to  St.  Domingo,  &c."  There 
is  no  direction  here  given  to  the  excutors  to  remove  them  before  emanci- 
pation— it  must  take  place  here.  The  negroes  were  to  receive  each  a 
hundred  dollars  ;  before  they  could  receive  the  legacies,  they  must  l)e 
emancipated — as  slaves,  they  are  incapable  of  taking.  Whatever  ambi- 
guity there  may  be  in  the  will,  there  is  none  in  the  codicil :  that  directs 
that  certain  negroes,  on  the  payment  of  certain  sums  of  money,  shall  be 
set  free  ;  and  this  is  an  absolute,  and  not  a  mere  directory  bequest — not 
a  direction  to  the  executors  to  remove  and  emancipate,  but  a  positive 
bequest  of  freedom  here  ;  and  goes  to  show  that  such  was  also  his  inten- 
tion in  the  will,  in  regard  to  all  his  negroes,  after  his  wife's  death — the 
future  destination  of  the  negroes  is  purely  matter  of  advice. 

The  aid  of  the  government,  too,  is  to  be  obtained,  and  the  consent  of 
St.  Domingo  to  receive  these  negroes.  These  are  serious  difficulties  to 
the  fulfilment  of  this  trust,  independently  of  the  act  of  1820;  but  that 
act  utterly  prevents  it,  by  declaring  emancipation  illegal.  The  seizure 
by  the  executor  could  not  avail.  Young  v.  Sylvester,  1  Bail.  632.  The 
bequest  being  void,  the  interests  of  the  next  of  kin  attached,  and  they 
became  entitled  to  possession  after  the  widow's  death,  and  the  executor 


242  SOUTH   CAROLINA   EQUITY   REPORTS.  [*313 

must  hold  for  their  benefit.  In  Walker  v.  Bostick,  4  Eq.  Rep.  266, 
it  was  held,  that  a  bequest  of  a  slave  to  a  trustee  with  directions  to 
liberate,  was  an  attempt  to  evade  the  law,  and  void  ;  and  a  legacy  to  the 
slave  was  declared  void,  and  fell  into  the  residuum  of  the  estate. — See 
also.  Chapman  &  Brown,  6  Yes.  403.  As  to  the  argument  drawn  from 
the  law  of  the  domicil ;  the  law  of  the  domicil  is  to  prevail  generally, 
but  not  where  the  rights  of  the  State  and  her  public  policy  is  concerned, 
and  would  be  affected  by  it.  3  Dallas,  370  ;  Dixon  v.  Ramsay,  3  Cranch, 
319. 

O'Neall,  J.  It  does  not  appear  that  any  question  is  made  under  the 
codicil :  the  slaves,  under  it,  have  not,  I  presume,  attempted  to  obtain 
any  benefit.  The  probability  is,  that  in  no  event  could  it  benefit  them. 
Under  the  clause  of  the  will  which  has  been  already  set  forth  at  length, 
the  question  arises.  Can  the  slaves  be  set  free  according  to  its  directions  ? 
To  solve  this  question  it  will  be  necessary  to  examine  first  the  law  on  the 
^--  -,  subject  of  emancipation  *of  slaves  ;  and  then  see  whether,  accord- 
-^  ing  to  law  and  a  just  construction  of  this  will,  the  provisions 
directing  and  connected  with  the  emancipation  of  the  testator's  slaves  can 
be  carried  into  effect. 

The  Act  of  1820,  (Acts  of  1820,  p.  22,)  by  its  preamble,  recites  that 
"  whereas  the  great  and  rapid  increase  of  free  negroes  and  mulattoes  in 
this  State,  by  migration  and  emancipation,  renders  it  expedient  and 
necessary  for  the  Legislature  to  r-estrain  the  emancipation  of  slaves,  and 
to  prevent  free  persons  of  color  from  entering  into  this  State:"  and  there- 
fore enacts  "that  no  slave  shall  hereafter  be  emancipated  but  by  act  of 
the  Legislature."  Other  provisions  of  that,  and  the  Act  of  1823,  are 
intended  to  prevent  the  migration  of  free  negroes  into  this  State ;  but, 
at  present,  it  is  only  necessary  to  look  to  the  enactment  in  restraint  of 
emancipation.  The  great  rule  of  construing  a  statute,  is  to  construe  it 
by  the  old  law,  the  mischief  and  the  remedy,  so  as  to  put  down  the 
mischief  and  advance  the  remedy  The  law,  as  it  stood  prior  to  the  Act 
of  1820,  allowed  emancipation  to  take  place  by  deed  upon  an  examination 
before,  and  to  the  satisfaction  of  a  Justice  of  the  Quorum  and  five  free- 
holders, that  the  said  slaves  were  of  good  character  and  capable  of 
gaining  a  livelihood  in  an  honest  way.  Under  this  law,  it  seems  from 
the  preamble  of  the  Act  of  1820,  there  was  a  rapid  increase  of  free 
negroes  and  mulattoes  by  emancipation.  This  was  the  evil,  to  remedy 
which  the  Act  of  1820  was  passed.  The  remedy  provided  was,  that 
emancipation  should  only  take  place  by  act  of  the  Legislature.  This  pro- 
vision is  general,  and  might,  from  the  words,  prohibit  emancipation  out 
of,  as  well  as  within,  the  State  by  a  citizen  of  the  State.  But  this  is  a 
construction  altogether  by  the  letter  and  not  by  the  spirit  of  the  law. 
For  the  intention  of  the  legislature  is  manifest — to  prohibit  the  emanci- 
pation of  slaves  within  the  State  except  by  act  of  the  Legislature.  The 
evil  was  the  increase  of  free  negroes  within  the  State  from  emancipation. 
So  this  was  remedied,  the  end  of  the  law  was  obtained.  The  removal  of 
slaves  belonging  to  citizens  of  the  State,  and  their  emancipation  in  parts 
beyond  her  territorial  limits,  was  no  injury  to  her.  They  could  not 
return  upon  her  as  free  negroes;  for  the  Acts  of  1820  and  1823  provide 
penalties  to  prevent  the  migration  of  free  negroes  into  South  Carolina. 


*314]  COLUMBIA,  MAT,   1835.  243 

The  Act  of  1820  could  not,  however,  have  effect  upon  emancipation 
beyond  the  limits  of  the  State.  For  the  slaves  within  her  *liraits,  r^qic 
when  lawfully  removed  beyond  them,  ceased  to  be  liable  to  her  ^ 
jurisdiction.  They  then  became  liable  to  another  jurisdiction,  and  were 
to  be  held,  enjoyed  or  disposed  of,  according  to  its  laws.  It  is  not,  as  I 
understand,  denied  that  the  owner  might  have  removed  his  slaves  from 
South  Carolina  and  manumitted  them  in  any  State  where  he  could  law- 
fully do  so.  But  if  it  were  denied,  the  denial  could  not  be  sustained  : 
for  there  is  no  law  prohibiting  the  owner  from  removing  his  slaves  from 
this  State  at  any  moment,  and  for  any  purpose  he  pleases.  If  he  has  the 
power  to  remove  them,  after  tliey  have  crossed  beyond  the  exterior  line 
of  the  State  she  cannot  reach  out  a  hand  to  touch  them  for  any  cause ; 
and  hence,  if  they  should  be  then  manumitted,  no  person  can  capture 
them  for  being  emancipated  contrary  to  her  laws  ;  for  they  have  been  set 
free  beyond  her  territorial  limits,  and  beyond  the  operations  of  her  laws. 
In  Cline  v.  Caldwell,  1  Hill,  427-8,  we  recognized  this  principle.  In 
Linam  v.  Johnson,  2  Bail.  137,  it  was  held  that  a  slave  emancipated 
contrary  to  the  Act  of  1820,  could  be  seized  under  the  provisions  of  the 
Act  of  1800  ;  and  that  this  was  the  only  penalty  which  could  be  imposed 
against  illegal  emancipation.  This  being  so,  and  there  being  no  right  of 
seizure  for  an  emancipation  out  of  South  Carolina,  it  follows  that  the 
emancipation  must  prevail.  But  it  is  said,  although  the  owner  might 
remove  from  the  State  and  set  free  his  slaves,  yet  his  executors  cannot, 
by  the  direction  of  his  will,  do  the  same  acts.  As  a  general  rule,  to 
which  there  is  no  exception,  unless  it  be  by  express  statutory  provisions, 
it  may  be  laid  down  that  the  owner  of  property  may  by  his  will  direct  his 
executors  to  dispose  of  it  in  any  way  which  he  could.  The  case  of 
Bynum  &  Wallace  v.  Bostick  &  Walker,  4  Eq.  Rep.  266,  under  the 
Act  of  1800,  does  hold  that  a  bequest  of  slaves  to  a  trustee  with  direc- 
tions to  set  them  free  is  void,  as  being  contrary  to  that  Act :  but  that 
opinion  was  certainly  prepared  under  a  strange  misapprehension  of  the 
law,  and  without  looking  at  the  Act.  For  it  states  that  the  "  statute 
expressly  forbids  any  emancipation  in  any  other  way  than  by  deed  exe- 
cuted in  the  lifetime  of  the  master  a  certain  time  before  his  decease.'" 
On  looking  at  the  Act,  (2  Faust,  355,)  it  will  be  seen  that  there  is  not  a 
word  said  about  the  deed  being  executed  "in  the  lifetime  of  the  master," 
or  within  "a  certain  time  before  his  decease."  This  shows  at  once  the 
unsoundness  of  that  decision.  The  case  of  Lenoir  v.  Sylvester,  and 
Young  u.  the  Same,  1  Bail.  *632-7-8-9,  held  that  an  executor,  r^oi,^ 
under  the  Act  of  1800,  might  execute  the  deed  and  do  every  •- 
other  act  requisite  by  it,  and  thus  give  effect  to  a  legacy  of  freedom.  So 
that  at  the  passage  of  the  Act  of  1820,  an  executor  could  have  carried 
out  and  given  effect  to  the  testator's  directions  to  emancipate  his  slaves, 
just  as  well  as  he  could  have  done.  The  Act  of  1820  did  not  i)rofess  to 
abridge  the  rights  of  an  executor  in  this  respect,  any  more  than  it  did  the 
rights  of  the  owner,  the  testator.  Emancipation  by  either,  in  the  State, 
could  not  be  effected — it  could  only  be  done  by  act  of  the  Legislature. 
But,  if  the  Act  of  1820  did  not  deprive  the  executor  of  the  power  of 
doing  anything  which  his  testator  could  lawfully  do,  (and  in  the  absence 
of  any  provision  to  that  effect,  it  cannot  be  doubted  that  it  did  not.)  then 
it  follows  that  a  testator's  directions  to  his  executor  to  remove  his  negroes 


244  SOUTH    CAROLINA    EQUITY    REPORTS.  [*316 

from  the  State  and  set  them  free,  are  legal  and  valid,  and  must  be  obeyed. 
For  he  had  the  power  in  his  lifetime  to  do  the  act ;  and  it  follows  that 
he  may  authorize  his  executor  to  do  the  same. 

This  makes  it  necessary  now  to  inquire  as  to  the  construction  to  be 
placed  on  the  bequests  in  favor  of  the  testator's  slaves  in  his  will.  It 
directs  in  substance  that  the  interest  on  their  hire  during  the  life  of  his 
wife,  or  on  the  sum  of  $100  each,  should  constitute  a  fund  to  enable  them 
to  go  to  St.  Domingo  or  any  other  place  they  may  choose,  and  to  wliich 
the  government  may  be  willing  that  they  should  go,  and  that  his  execu- 
tors should  set  them  free,  and  pay  them  the  sum  of  $100  each.  In  con- 
struing a  will,  it  is  a  uniform  rule  to  give  it,  if  possible,  such  a  construction 
that  it  may  have  effect  and  not  be  defeated.  It  is  hence  admissible  to 
transpose  words  and  sentences  to  subserve  the  intentions  of  the  testator. 
In  this  bequest  it  is  manifest  that  the  testator  intended  that  his  slaves 
should  enjoy  freedom,  not  within  the  State,  but  in  parts  beyond  her^limits, 
where  it  might  be  lawful  and  ]iroper  that  they  should  be  free.  This  is 
not  contrary  to  the  law  of  this  State.  The  direction  to  liis  executors  to 
set  them  free  must  be  taken  to  be  part  of  the  provision  to  "  enable  them 
to  go  to  St.  Domingo  to  be  colonized,  or  to  any  part  that  they,  with  the 
5^oTK-|  government,  may  *choose."  To  set  them  free  within  the  State,  is 
'-I  contrary  to  law  ;  and  this  the  executors  cannot  therefore  do  :  but 
they  can  remove  them  from  the  State  to  parts  where  emancipation  is 
lawful,  and  there  set  them  free.  This  comi)orts  with  the  testator's  inten- 
tion, and  is  therefore  admissible.  The  legacy  of  freedom  here  is  in  its 
words  altogether  executory :  and  according  to  Lenoir  v.  Sylvester,  and 
Young  V.  the  Same,  1  Bail.  637-8-9,  it  is  the  duty  of  the  executors  to 
give  it  effect.  But  it  is  said,  how  can  the  Court  compel  the  executors  to 
carry  such  a  bequest  into  execution  ?  for  the  slaves  themselves  cannot, 
nor  can  any  other  person,  for  them,  file  a  bill  to  compel  the  executors  to 
execute  a  will  in  this  respect.  But  I  apprehend  there  is  in  this  case,  and 
others  like  it,  no  difficulty.  For  on  a  bill  filed  by  the  heirs  to  partition 
the  slaves,  the  Court  would,  if  on  looking  into  the  will  they  should  find 
that  the  executors  could  execute  it  by  sending  the  slaves  out  of  the  State 
and  tiiere  set  them  free,  order  them  to  so  discharge  the  trust  reposed  in 
them  by  the  testator.  In  other  cases,  the  executor's  oath  to  execute  the 
will,  and  the  fair  claim  which  they  have  to  the  confidence  of  the  Court  by 
the  confidence  reposed  in  them  by  the  testator,  are  sufficient  guaranties 
that  such  a  bequest  will  be  faithfully  executed.  To  remove  the  slaves 
beyond  the  State  to  the  pla^e  to  which  they  may  choose  to  go,  the  testator's 
estate  under  his  directions  to  his  executors  to  remove  them,  would  have 
been  liable  to  the  expenses,  had  he  not  provided  a  fund  in  the  interest  on 
the  sum  of  $100  each  which  he  had  bequeathed  to  them  This  last  sum 
they  will  also  be  entitled  to  receive  on  being  emancipated  ;  for  in  the  will 
it  follows  the  bequest  of  freedom,  and  is  intended  to  vest  in  them  and  be 
payable  to  them  when  they  shall  become  free  people.  In  this  point  of 
view,  it  is  not  liable  to  the  objection  to  which  it  would  be  subject  was  it 
a  legacy  to  slaves. 

It  is  therefore  ordered  and  decreed  that  the  defendants  do  forthwith  re- 
move their  testator's  slaves  to  parts  beyond  the  limits  of  this  State,  where 
it  may  be  lawful  to  emancipate  them,  and  that  they  there  do  there  legally 
emancipate  and  set  them  free ;  that  they  defray  the  expenses  thereof  out 


*317]  COLUMBIA,   MAT,    1835.  245 

of  the  interest  from  one  year  after  the  testator's  death,  on  the  sums  of  $1 00 
bequeathed  to  each  of  the  said  slaves  when  they  slionld  be  set  free:  and 
that  they  pay  to  the  said  slaves  when  they  do  set  them  free  as  hereinbefore 
ordered,  the  sum  of  $100  each,  and  any  arrears  of  interest  which  may  re- 
main after  defraying  the  expenses  of  their  removal  and  emancipation. 

*It  is  ordered  an"d  decreed  that  the  defendants  do  account  to  r-^g^g 
such  of  the  plaintiffs  as  may  be  entitled  under  the  will,  for  the  pro-  L 
ceeds  of  the  sale  of  the  land  and  personal  estate  and  the  hire  of  the  slaves, 
after  deducting  from  the  aggregate  of  principal  the  sum  of  $100  for  each 
of  the  said  slaves  at  the  end  of  one  year  from  the  testator's  death  ;  and  also 
after  deducting  all  sums  paid  properly  for  the  maintenance  of  the  widow, 
and  all  other  proper  payments  and  expenditures  touching  the  estate,  and 
the  costs  of  this  case,  which  are  to  be  paid  out  of  the  estate.  The  de- 
fendants must  account  for  interest  on  the  annual  balances. 

Johnson,  J.,  concurred. 


Wm.  H.  Gist  v.  S.  P.  Pressley,  J  as.  Allston,  Geo.  W.  Hodges,  and 
Geo.  W.  Pressley. 

Plaintiff  bad  a  mortgage  of  two  negroes  from  his  debtor  against  whom  there  were 
senior  executions.  Defendants  had  also  a  mortgage  of  real  estate  junior  to  the  plfiin- 
tiffs,  and  in  order  to  save  the  property  mortgaged  to  them,  purchased  the  eldest 
execution.  The  negroes  mortgaged  to  plaintiff,  and  all  the  other  property  except 
that  mortgaged  to  defendants  were  sold  under  the  executions,  and  they  were  all 
satisfied:  the  defendants  afterwards  foreclosed  their  mortgage  by  sale  under  the 
order  of  the  Court,  the  proceeds  remaining  in  Court.  On  a  bill  filed  by  tlie  plaintiff, 
it  was  held  that  he  was  entitled  to  relief  out  of  the  proceeds  of  the  property 
mortgaged  to  defendants,  to  the  extent  of  the  sales  of  the  negroes  mortgaged  to 
him.   [*324] 

There  is  a  difference  between  an  absolute  sale  and  a  mortgage  in  respect  to  tne 
effect  of  the  grantor's  retaining  possession  :  in  the  first  it  is  in  the  common  course 
that  possession  should  be  changed,  and  if  it  is  not,  it  is  evidence  of  fraud  ;  but 
this  is  not  the  course  in  the  case  of  a  mortgage,  and  the  mere  circumstance  of 
the  mortgagor  retaining  possession  until  condition  broken,  is  not  of  itself  evi- 
dence of  fraud.  [*325] 

Even  after  condition  broken  a  mortgage  is  still  different  from  an  absolute  sale. — 
It  is  not  the  usual  course  that  the  mortgaged  property  should  be  seized  imme- 
diately after  condition  broken— some  degree  of  neglect  iu  this  respect  will  not 
infer  fraud;  great  neglect  may.  [*328] 

Before  Chancellor  Johnston,  at  Abbeville,  June,  1814. 

The  bill  alleges  that  John  B.  Pressley  made  a  note  in  these  words  :— 

"  On  or  before  the  first  day  of  July  next,  I  promise  to  pay  William  H. 
Gist,  or  bearer,  nine  hundred  dollars,  for  value  received,  with  interest 
from  the  first  day  of  January  last  past,  this  21st  day  of  .Afay,  1832. 

"(Signed)  Joiix  B.  Pressley." 

And  executed  the  following  mortgaae  : — 

"  State  of  South  Carolina "Whereas,  I,  John  V>.  Pressley  of  the  dis- 
trict of  Abbeville,  and  State  aforesaid,  am  indebted  to  AVilliam'  II.  Gist, 
in  the  sum  of  nine  hundred  dollars  by  promissory  note,  dated  the  twenty- 
first  day  of  May,  due  the  first  day  of  July  next,  with  interest  thereon  from 
the  first  day  of  Januarv  last.  Now,  therefore,  l<now  all  men  by  these 
YoL.  I.— 39 


246  SOUTH    CAROLINA    EQUITY    REPORTS.  [*31S 

presents,  that  I,  John  B.  Pressley,  in  consideration  of  tlie  premises,  and 
to  secure  the  more  certain  payment  of  the  above  specified  sum  of  money, 
have  granted,  bargained  and  sold,  and  by  these  presents  do  grant,  l^argaia 
and  sell,  and  in  market  overt  delivery,  to  the  said  William  H.  Gist,  two 
^„,„-n  negro  slaves,  Godfrey  and  Betty,  the  former  about  twenty-eight 
^  -'  years  of  age,  the  latter  about  thirty-two,  to  have  and  to  hold  the 
said  two  negroes,  with  their  future  increase,  if  any,  unto  the  said  William 
H.  Gist,  his  heirs,  executors,  administrators  and  assigns  for  ever.  And 
I  do  hereby  bind  myself  and  my  legal  representatives,  to  warrant  and 
for  ever  defend  the  title  and  soundness  of  the  said  two  negroes,  to  the  said 
AVilliam  and  his  legal  representatives,  against  myself,  and  all  claims 
derived  through,  or  founded  on  ray  title  or  claim,  and  against  all  persons 
whomsoever,  claiming  or  to  claim  the  same  Given  under  my  hand  and 
seal,  this  nineteenth  day  of  June,  in  the  year  of  our  Lord,  one  thousand 
eight  hundred  and  thirty-two.  Now,  the  condition  of  the  above,  obliga- 
tion is  such,  and  it  is  hereby  expressly  agreed,  that  if  the  above  bound 
John  B.  Pressley,  or  his  legal  representatives,  shall  well  and  truly  pay 
the  sum  of  money  specified  in  the  said  promissory  note  above  referred  to, 
■with  all  interest  there  may  be  due  thereon  according  to  its  tenor  and  legal 
effect,  then  this  obligation  and  every  grant  hereby  made,  shall  become 
null  and  void,  otherwise  to  remain  in  full  force  and  effect 

Jno.  B.  Pressley,  [Seal.] 

Signed,  sealed  and  delivered  in"^ 
the  presence  of  j 

Thos.  B.  Speerin, 
Gary  Davis." 

That  on  the  19th  of  February,  1829,  John  B.  Pressley,  with  these  de- 
fendants, his  sureties,  become  bound  to  David  Lesley  in  the  penalty  of 
five  thousand  dollars,  conditioned  to  pay  $2000,  with  interest  from  the 
first  of  January,  1829,  on  the  first  of  January,  1832;  which  bond  was 
assigned  on  the  day  of  its  execution,  to  Alexander  B.  Arnold.  That 
bond  being  unpaid,  Jno.  B.  Pressley,  on  the  23d  of  June,  1832,  mort- 
gaged to  the  defendants  as  an  indemnity  for  their  suretyship,  a  house  and 
lot  in  the  village  of  Al)beville,  and  his  mill  tract  of  land.  On  the  3d  of 
August,  1832,  John  B.  Pressley  died,  possessed  of  the  negroes,  house 
and  lot,  mill  tract  of  land,  and  very  little  other  estate  :  at  his  death, 
there  were  executions  to  the  amount  of  twelve  or  thirteen  hundred  dol- 
lars older  than  either  of  the  mortgages.  That  soon  after  Pi'essley's 
death,  James  Allston  knowing  of  the  plaintiff's  mortgage,  and  suspecting 
Pressley's  solvency,  on  the  6th  of  August,  1832,  took  an  assignment  of 
the  execution  of  William  Harris  i'.  John  B.  Pressley,  which  was  senior 
of  the  othei's,  and  on  which  was  due  about  $910.  That  Allston  assigned 
one  half  of  that  execution  to  George  W.  Hodges,  1st  of  October,  1832. 
*3'^01  *'^'^^'^  Allston  and  Hodges  caused  this  execution  to  be  levied  on 
-■  Godfiey  and  Betty,  with  the  view  to  save  the  mill  tract  and  house 
and  lot,  for  their  mortgage,  and  they  were  sold  in  October,  1832,  by  the 
sheriff,  for  the  inadequate  price  of  $680,  which  was  paid  over  to  Allston 
and  Hodges,  under  Harris'  execution  :  and  that  under  this  and  the  other 
executions,  all  the  visible  property  of  John  B.  Pressley,  except  the  house 
and  lot,  and  mill  tract,  was  exhausted,  and  all  the  executions  satisfied. 

That   afterwards   administration    of  John   B.    Pressley's   estate   was 


*320]  COLUMBIA,  MAY,   1835.  247 

granted  to  George  "W.  Prcsslcy,  wlio  being  sned  by  this  ])1aintiff,  obtained 
leave  to  plead  jAene  adminhsli-avit,  dcelaring  tlicrc  would  l)e  no  assets  to 
pay  simple  contracts  of  the  intestate.  In  November,  1833,  the  sureties 
of  J.  B.  Pressley  paid  the  assignee  of  his  said  bond  about  $2G00,  the 
amount  due;  and  in  May,  1833,  hied  their  bill  for  foreclosure  of  their 
mortgage,  upon  which  an  order  was  made  (June,  1833,)  by  the  Chancellor 
of  foreclosure,  to  satisfy  the  mortgage  or  other  lien  having  preference, 
and  that  the  money  should  be  held  by  the  Commissioner  subject  to  the 
liens  of  claimants  ;  and  this  order  was  made  on  the  suggestion  of  this 
plaintiff's  claims.  The  house  and  lot  and  mill  tract  were  sold  for  $2400. 
That  plaintiff  has  before  and  since  frequently  urged  on  defendants,  that 
his  mortgage  being  older  than  theirs,  he  had  a  right  in  equity  to  insist 
that  all  unincumbered  property  and  that  subject  to  a  junior  lien,  should 
be  exhausted,  before  that  suliject  to  his  lien  should  be  disturl)cd,  and  that 
having  caused  a  contrary  course  to  be  taken,  they  were  1)0uik1  to  allow 
him  satisfaction  of  his  mortgage  out  of  the  avails  of  theirs  ;  but  they  re- 
fused, and  even  denied  him  a  ratal)le  proportion  thereof.  The  ))ill  prays 
that  the  defendants  may  answer  on  oath  its  allegations  :  that  Allston  and  ' 
Hodges  may  discover  what  they  paid  for  the  execution  of  Harris ; 
whetTier  they  did  not  procure  the  sale  of  Godfrey  and  Betty  under  that 
execution,  and  whether  they  were  not,  then  and  before,  well  informed  of 
the  plaintiff's  mortgage  ;  that  from  the  sale  of  the  Commissioner,  the 
plaintiff  may  have  satisfaction  of  his  demands,  or  so  much  as  will  equal 
the  inadequate  prices  for  which  the  negroes  were  sold,  with  interest  from 
the  date  of  the  sale ;  or  that  of  the  price  of  the  negroes,  and  interest 
and  the  proceeds  of  real  estate,  the  plaintiff  may  have  a  share  propor- 
tioned to  the  sum  left  for  the  sureties,  as  the  amount  of  his  note  is  to 
their  demand  ;  and  for  such  other  relief  as  should  be  proper. 

*The  answer  of  George  W.  Pressley  admits  $105  of  assets  in  r*o.-)i 
his  hands  applicable  to  debts  of  his  intestate,  J.  B.  Pressley,  and  ^ 
that  the  amount  of  specialty  debts  greatly  exceeds  the  assets.  The  an- 
swer of  James  AUston  and  George  W.  Hodges  denies  that  they  knew 
anything  of  the  plaintitPs  debt,  and  say  they  did^not  hear  of  his  mort- 
gage until  after  J.  B.  Pressley's  death  ;  nor  did  they  hear  that  it  was 
older  than  their  mortgage  until  they  had  purchased  tlie  Harris  execution, 
but  did  hear  of  it  before  the  sale  of  Godfrey  and  Betty.  That  these  de- 
fendants were  the  sureties  of  J.  B.  Pressley,  and  as  such,  paid  the  amount 
stated  in  the  bill ;  and  that  the  bond  on  which  the  payment  was  made, 
was  for  the  purchase  of  the  house  and  lot,  afterwards  with  the  mill  tract, 
mortgaged  to  them  as  the  bill  sets  out :  that  J.  B.  Pressley  died  about 
the  time  and  left  the  property  mentioned  in  the  bill,  and  i)ersonal  prop- 
erty under  no  specific  lien,  which  was  sold  by  the  sheriff  for  $656  11. — 
They  suspected  the  solvency  of  J.  B.  Pressley,  and  did  buy  the  execu- 
tion of  Harris  to  protect  the  lot  and  mill  tract,  but  i)aid  for  it  its  nomi- 
nal value,  and  it  had  assigned  as  the  bill  states.  That  the  plaintiff  told  AU- 
ston his  mortgage  w'as  not  recorded,  and  theirs  was  recorded  That 
neither  of  them  caused  or  procured  a  levy  or  sale  of  Godfrey  and  Betty 
under  their,  or  any  other  execution,  nor  was  a  levy  or  sale  made  under 
theirs.  They  did  not  receive  the  price  of  Betty,  it  was  paid  over  to 
junior  executions,  and  oidy  received  the  price  of  Godfrey,  ($430,)  which 
the  sheriff  had  applied  to  theirs  as  the  oldest  execution.     That  the  plain- 


248  SOUTH    CAROLINA    EQUITY   REPORTS.    '  [*321 

tiff  knew  the  negroes  had  been  levied  on  and  would  be  sold,  and  did  not 
resist  the  sale  or  claim  the  proceeds  at  the  sherifl''s  hands.  That  the  de- 
fendants might  well  have  claimed  the  proceeds  of  Godfrey  and  Betty 
both  ;  because,  after  the  mortgage,  they  remained  in  the  possession  of  J. 
B.  Pressley  until  his  death,  and  at  his  late  residence  until  seized  by  the 
sheriff,  having  never  been  in  the  plaintiff's  possession.  That  the  plaintiff 
never  did  apply  to  them  to  have  their  execution  satisfied  out  of  the  unin- 
cumbered property,  or  for  payment,  as  the  bill  states. 

The  Chancellor  decreed,  that  of  the  moneys  in  the  hands  of  the  Com- 
missioner arising  from  the  sale  of  the  house  and  lot  and  mill  tract,  the 
plaintiff  should  be  allowed  the  amount  for  which  Godfrey  and  Betty  were 
sold  by  the  sheriff,  with  interest  from  the  time  of  sale  until  the  money 
*Q901  was  impounded   by  the  order  of  the  *Court  of  Equity.     From 

^""-^  which  decree  the  defendants,  James  Allston,  George  W.  Hodges 
and  Samuel  P.  Pressley  appealed. 

A.  Bu7i,  for  the  appellants,  now  moved  to  reverse  or  modify  the  de- 
cree, on  the  following  grounds  : — 

1.  Because  the  decree  allows  to  the  plaintiff  the  price  of  Godfrey  and 
Betty,  of  the  avails  of  the  land,  assuming  that  his  mortgage  is  older  than 
defendants',  although,  if  older,  its  lien  was  waived  by  permitting  them  to 
be  sold,  and  their  proceeds  appropriated  to  Harris'  and  other  executions; 
and  although  the  Harris  execution  was  never  levied,  or  otherwise  used  to 
the  plaintiff's  detriment. 

2.  Because  the  Harris  and  other  executions  older  than  the  mortgage, 
could  not  be  thrown  upon  the  land  ;  for  they  were  satisfied  before  the 
filing  of  this  bill. 

3.  Because  the  decree  requires  the  defendants  to  account  for  the  price 
of  Betty,  although  she  was  not  sold  under  the  Harris  execution,  nor  the 
proceeds  of  her  sale  applied  to  it. 

4.  Because  the  mortgage  of  the  defendants  being  taken  without  the 
knowledge  of  the  plaintiff,  and  being  a  lien  on  different  property,  gives 
the  plaintiff  no  claim  to  subject  the  land  to  executions  older  than  either 
mortgage, 

5.  Because  the  possession  by  J.  B.  Pressley  of  Godfrey  and  Betty, 
after  breach  of  the  condition  of  the  mortgage,  was  fraud  per  se ;  or  at 
least  such  a  badge  of  it  as  impaired  any  claim  that  the  plaintiff  might 
have  had  to  the  relief  decreed  to  him. 

6.  Because  at  all  events  the  decree  should  have  allowed  the  Harris 
execution,  as  the  oldest,  the  avails  of  the  whole  unincumbered  estate  of 
J.  B.  Pressley,  and  charged  the  land  with  the  residue  only  of  the  defend- 
ants' receipts  under  the  Harris  execution. 

On  these  grounds,  it  was  argued  that  the  plaintiff  had  no  equitable 
ground  of  relief  against  the  defendants,  at  least  to  the  extent  afforded  by 
the  decree.  The  fifth  ground  was  however  priucipally  relied  on,  under 
which  it  was  insisted  that  the  plaintiff's  mortgage  was  fraudulent  and 
void  as  to  creditors  and  purchasers  because  it  was  not  recorded,  and  its 
existence  was  not  known  to  the  defendants — that  the  mortgagor,  after 
condition  broken,  continued  in  possession  of  the  negroes,  and  exercised 
all  acts  of  ownership  over  them  until  his  death,  and  his  representatives 
a;-_erwards  up  to  the  levy  ;  and  permitting  the  property  to  remain  in  pos- 


*322]  COLUMBIA,   MAY,    1S35.  249 

session  *of  the  mortgagor,  was  evidence  of  some  secret  trust  for  r-^ooq 
his  benefit;  and  that  the  circumstances  of  themselves  constituted  L  '^^ 
such  a  case  as  rendered  the  mortgage  absokitely  void;  or  at  least  fur- 
nished such  high  evidence  of  fraud,  as  should  prevent  the  Court  from 
interfering  in  behalf  of  the  plaintiff  against  creditors  and  purchasers 
without  notice.  And  in  support  of  this  ground,  the  following  authori- 
ties were  cited  and  commented  on  : — Smith  v.  Henry,  1  Hill's  Hep.  IG  ; 
Cowp.  434;  1  Cranch,  316;  2  Kent's  Com.  405;  Hudnal  v.  Teasdale, 
4  M'C.  294;  3  Co.  87;  Free,  in  Ch.  285;  1  Atk.  165;  1  Bur.  467  ; 
Kidd  V.  Rawlinson,  1  Bos.  &  Pul.  59  ;  Arundel  v.  Phipps,  10  Ves.  145; 
2  Kent's  Com  412;  Reeves  i;.  Harris,  1  Bail.  563;  Edwards  v.  Har- 
ben,  2  T.  R.  587;  Montgomery  v.  Kerr,  1  Hill,  291  ;  Bobo  v.  M'Beth, 
2  Bail.  489-91 ;  Walwyn  v.  Lee,  9  Ves.  24;  Frost  v.  Beekraan,  1  John, 
Ch.  Rep.  300. 

D.  L.  Wardlaw,  contra,  contended  that  the  circumstances  made  a  case 
for  relief,  on  the  established  principles  of  equity  that  a  creditor  having  a 
specific  lien,  may  compel  other  creditors  having  elder  general  liens,  to 
exhaust  all  the  rest  of  the  property  before  resorting  to  that  on  which  he 
has  the  lieu — the  defendant's  mortgage  being  junior  to  the  plaintiff's,  the 
property  therein  mortgaged  must  be  first  subject  to  the  elder  executions. 
It  was  mortgaged  subject  to  the  plaintiff's  ecpiitable  right  to  have  it  so 
made  liable  before  resorting  to  the  negroes  mortgaged  to  him  ;  and  the 
proceeds  of  the  sale  of  the  property  in  the  hands  of  the  Court  must  be 
held  liable  in  like  manner  as  the  property  itself.  As  to  the  charge  of 
fraud,  he  insisted  that  the  possession  of  the  mortgagor  was  not  such  as 
would  render  the  mortgage  void  ;  it  was  but  for  a  few  days  after  condition 
broken,  and  being  consistent  with  the  purpose  of  the  deed,  repelled  the 
presumption  of  fraud.  Cited  Clowes  v.  Dickinson,  5  John  Ch.  Rep. 
235  ;  Gill  v.  Lyon,  1  John.  Ch.  Rep.  447  ;  Stoney  u  Shultz,  1  Hill's 
Ch.  500;  2  Bar.  &  Aid.  134;   1  Bin.  467;  Ryan  &  Moody's  Rep.  305. 

Harper,  J.  The  three  first  grounds  of  the  motion  may  be  considered 
together.  The  principles  of  the  Chancellor's  decision,  are  perhaps  less 
distinctly  seen,  because  the  defendant's,  Allston  and  Hodges,  sustain  the 
characters  both  of  senior  execution  creditors  and  junior  mortgage  credi- 
tors of  the  deceased,  John  B.  Pressley.  If  the  execution  creditors  were 
different  persons,  and  were  now  seeking*  to  enforce  their  execu-  r*qc)4 
tions  against  the  slaves  now  in  question,  the  plaintiff'  would  have  a  L 
clear  equity  to  restrain  them,  and  to  compel  them  to  resort  to  the  property 
mortgaged  to  defendants.  This  is  on  the  principle  expressed  in  the  case 
of  Powler  &  Addison  v.  Barksdale,  State  Rep.  Eq.  164,  "that  when  a 
preferred  creditor  has  a  lien  on  two  funds,  and  another  creditor  has  a 
junior  lien  on  one  of  them,  the  creditor  who  has  the  preference  shall  resort 
to  that  which  will  operate  the  least  injuriously  to  the  other  creditor."  And 
if  the  executions,  being  restrained  as  to  the  slaves,  had  been  enforced  against 
the  pi'operty  mortgaged  to  the  defendants,  the  latter  would  have  had  no  re- 
dress or  claim  of  contribution  against  the  plaintiff.  The  principle  is  fully 
explained  by  Chancellor  Kent,  in  Gill  v.  Lyon,  1  John.  Ch.  Rep.  447,  and 
Clowes  V.  Dickenson,  5  John.  Ch.  Rep.  235.  When  the  intestate  mortgaged 
(that  is,  conditionally  sold)  the  slaves  to  plaintiff,  his  execution  creditors 


250  SOUTH   CAROLINA   EQUITY   REPORTS.  [*324 

were  bound  on  equitable  principles  to  exhaust  the  property  which  remained 
in  his  hands,  before  pursuing  that  to  which  plaintiff  had  acquired  a  title. 
Among  this  property,  was  the  land  and  mill  and  house  and  lot  in  question. 
When  the  intestate  afterwards  conveyed  these  to  defendants,  he  could 
only  convey  them,  subject  to  the  equitable  burden  to  which  they  were 
liable  in  his  own  hands.  In  the  language  of  Chancellor  Kent,  "  they  sit 
in  the  seat  of  their  grantor.^''  The  burden  is,  that  the  property  must  be 
liable  to  the  execution  creditors  in  preference  to  that  couveyed  to 
plaintiff. 

Then,  if  plaintiff  had  neglected  to  restrain  the  execution  creditors,  and 
had  lain  by  and  permitted  the  property  to  be  sold,  and  then  filed  his  bill 
against  defendants  to  be  reimbursed  out  of  the  property  conveyed  to  them, 
could  that  bill  be  sustained  ?  I  see  uo  reason  why  it  should  not ;  pro- 
vided no  particular  injury  were  occasioned  to  defendants  by  the  delay. 
This  is  part  of  the  matter  decided  in  Clowes  v.  Dickinson.  And  this  will 
dispose  of  the  third  ground,  relative  to  the  proceeds  of  the  slave,  Betty 
There  were  executions  older  than  the  pluintiff's  mortgage,  to  exhaust  the 
whole  personal  property.  That  defendants  were  the  owners  of  the  Harris 
execution,  was  merely  au  accidental  circumstance.  If  they  had  not  been, 
and  the  whole  of  the  money  had  been  paid  to  third  persons,  their  liability 
would  have  been  the  same.  In  Clowes  v.  Dickinson,  the  bill  was  in  like 
manner  filed  to  be  reimbursed  after  the  property  first  purchased  had  been 
sold.  In  that  case,  too,  it  happened  that  the  second  purchasers  of  pro- 
*q9K-]  perty  *had  purchased  the  older  execution.  In  that  case,  as  is 
-I  alleged  in  this,  the  property  (two  lots  of  land)  sold  under  execu- 
tion was  purchased  at  a  very  low  price  ;  and  it  was  contended  for  the 
plaintiff,  that  if  he  were  not  entitled  to  have  the  lots  themselves,  he  ought 
to  have  an  inquiry  as  to  their  actual  value  at  the  time  of  the  sale.  But 
as  he  had  been  guilty  of  great  laches,  having  lain  by  for  several  years, 
and  the  purchasers  had  in  the  mean  time  made  much  improvements  on 
the  lots,  which  would  have  rendered  it  inequitable  that  they  should  be 
taken  from  them,  the  Chancellor  would  only  allow  him  the  amount  for 
which  the  property  actually  sold.  This  is  what  the  Chancellor  has  done 
in  the  present  case ;  though  I  do  not  know  that  laches  can  be  imputed  to 
the  plaintiff.  What  has  been  said,  disposes  of  the  fourth  ground,  and 
also  of  the  sixth.  With  respect  to  the  latter,  it  is  enough  to  say  that 
defendants  have  been  satisfied  their  execution.  It  is  immaterial  to  them 
wiiether  this  has  been  done  by  the  proceeds  of  the  particular  slave,  Betty, 
or  other  personal  property  of  the  intestate.  To  whatever  executions 
these  may  have  been  applied,  the  property  in  defendants'  hands  is  liable  to 
make  them  good.  The  third,  fourth  anci  sixth  grounds  are  all  miscon- 
ceived. 

The  fifth  ground  is  that  which  seems  principally  to  be  relied  on.  It  is 
supposed  to  come  within  the  principle  of  the  case  of  Smith  v.  Henry,  1 
Hill,  16,  that  where  a  conveyance  is  made  by  an  insolvent  person  in  pay- 
ment of  a  previously  existing  debt,  and  the  grantor  is  allowed  to  retain 
possession  of  the  property,  this  is  conclusive  evidence  of  fraud.  Or,  at 
all  events,  that  the  intestates  having  been  permitted  to  retain  possession 
after  condition  broken,  was  a  badge  of  fraud,  which  has  not  been  ex- 
plained, and  which  must  vitiate  the  conveyance.  It  is  argued  that  there 
is  no  difference  in  principle  between  a  conveyance  by  way  of  mortgage 


*325]  COLUMBIA,   MAY,    1H35.  251 

and  an  absolute  conveyance.  The  principal  English  cases  relied  on  are 
those  of  Edwards  v.  Ilarben,  1  T.  R.  587  ;  Ryall  v.  Rolle,  1  Atk.  1G5, 
and  Worsely  v.  De  Mattos,  1  Burr.  4G7.  The  two  latter  were  cases  of 
express  mortgages,  and,  it  is  said,  decided  that  possession's  being  retiiiiiod 
by  the  mortgagor,  whether  before  or  after  condition  broken,  is  of  itself 
conclusive  of  fraud.  But  these  elaborately  considered  cases  were  deter- 
mined with  reference  to  the  English  statutes  of  bankruptcy,  and  i)articu- 
larly  the  21  Jac.  1,  c.  19,  whicli  reciting  "  For  that  it  often  falls  out  that 
many  persons,  before  they  become  bankrupts,  do  convey  their  goods  to 
other  *men  upon  good  consideration,  yet  still  do  keep  the  same,  p:^q.')p 
and  are  reputed  the  owners  thereof,  and  dispose  the  same  as  their  ^ 
own,"  enacts,  "that  if  at  any  time  hereafter,  any  person  or  persons  shall 
become  bankrupt,  and  at  such  times  as  they  shall  so  become  bankrupt, 
shall,  by  consent  and  permission  of  the  true  owner  and  proprietary,  have 
in  their  possession,  order  or  disposition,  any  goods  or  chattels  whereof 
they  shall  be  reputed  owners,  or  take  upon  them  the  sale,  alteration  or 
disposition  as  owners,  that  in  every  such  case,  the  said  commissioners 
shall  have  power  to  sell  and  dispose  the  same,  as  fully  as  any  other  part 
of  the  bankrupt's  estate."  The  cases  determined  that  a  mortgage  is  a 
conditional  sale  and  transfers  the  property  to  the  mortgagee,  who  is 
therefore  the  true  owner  and  proi)rietary,  and  if  by  his  consent  it  be  left  in 
the  mortgagor's  possession,  it  comes  within  the  terms  of  the  act,  whether 
the  possession  be  before  or  after  condition  broken.  But  I  acknowledge 
that  the  subjects  is  fully  considered  with  reference  to  the  common  law, 
and  the  stat.  13  Eliz.  and  the  opinion  of  the  Court  expressed,  that  there 
is  no  difference  between  a  mortgage  and  an  absolute  conveyance.  But  it 
is  not,  as  under  the  bankrupt  law,  that  the  retaining  of  possession  of 
itself  avoids  the  transaction,  or  is  conclusive  evidence  of  fraud.  It  is  one 
of  the  circumstances  which  is  to  be  taken  with  all  the  other  circumstances, 
to  make  up  a  judgment  on  the  fraudulent  or  bona  fide  character  of  the 
transaction.  After  reviewing  the  cases  on  the  subject,  it  is  said  in  Ryall 
V.  Rolle,  "  Prom  all  these  cases,  it  appears,  that  upon  the  construction 
of  the  stat.  13  Eliz.  there  is  no  room  to  make  a  distinction  between  con- 
ditional and  absolute  sales  of  goods,  if  made  to  defraud  creditors,  but  a 
Court  or  jury  are  left  to  consider  of  this  from  the  circumstances  of 
the  case.''''  I  have  before  ventured  to  express  the  opinion,  that  the  true 
ground  of  decision  in  Twine's  case  was  lost  sight  of  in  succeeding  cases, 
and  the  distinction  overlooked  between  the  cases  in  which  the  retaining 
of  possession  is  conclusive  evidence,  or  only  one  of  the  badges  of  fraud. 

I  have  not  fouud  any  decision  of  the  English  Courts  or  our  own,  incon- 
sistent with  the  cases  of  Ryall  v.  Rolle  and  Worsely  v.  De  Mattos,  on 
the  point  we  are  considering.  And  I  concur,  that  there  is  no  distinction 
in  principle  between  an  absolute  conveyance  and  a  mortgage  or  conditional 
conveyance.  There  will  be  a  great  difference,  however,  in  the  application 
of  the  principle,  according  to  the  circumstances  of  the  different  cases. 
If,  according  *to  the  distinction  in  Smith  v.  Henry,  there  were  a.  (-*o9't 
previous  debt  due  and  payable  at  the  time,  and  the  mortgage  was  '- 
executed  to  secure  that,  the  mortgagor  remaining  in  possession,  it  would 
come  completely  within  the  reasoning  of  that  case.  No  other  motive 
could  well  be  imagined  for  such  a  transaction,  than  that  a  mortgagor's 
being  permitted  to  retain  possession  of  the  goods,  was  the  price  paid  by 


252  SOUTH    CAROLINA   EQUITY    REPORTS.  [*327 

the  ci-oditor  for  the  preference  given  to  him.  Sucli  precisely  is  the  case  of 
Edwards  v.  Harben.  Tliough  called  a  bill  of  sale,  that  was  in  effect  a 
mortgage.  It  was  intended  as  a  security.  It  was  for  a  debt  already  due, 
and  it  was  stipulated  that  the  vendee  should  not  take  possession  for  four- 
teen days.  It  was  in  this  case  that  the  retaining  of  possession  was  held 
to  be  conclusive  evidence  of  fraud.  The  case  of  Meggott  v.  Mills,  1 
Lord  Kaym.  286,  which  was  not  referred  to-  in  Smith  v.  Henry,  and 
which  is  quoted  and  commented  on  in  Ryall  v.  Rolle  and  Worsely  v.  De 
Mattos,  seems  to  me  to  illustrate  this.  In  that  case  the  landlord  had 
advanced  money  to  his  tenant  to  buy  furniture,  and  took  a  mortgage  of 
the  furnitui-e  to  secure  himself,  the  tenant  retaining  possession.  As 
observed  in  both  the  cases  mentioned,  this  was  not  decided  upon  any 
notion  of  a  distinction  between  a  mortgage  and  an  absolute  conveyance, 
but  Lord  Holt  said  that  "  if  these  goods  of  Wilson's  had  been  assigned 
to  any  other  creditor,  the  keeping  of  the  possession  of  them  had  made 
the  bill  of  sale  fraudulent  as  to  the  other  creditors."  This  cannot  be  on 
any  such  ground  as  that  a  landlord  stands  on  a  better  footing  than  any 
otiier  creditor ;  but  must  go  on  the  principle  of  Smith  v.  Henry,  that  he 
who  has  advanced  his  money  on  the  faith  of  the  security  of  the  mortgage, 
stands  on  a  different  footing  from  a  creditor  to  whom  the  debtor's  goods 
are  mortgaged  to  secure  a  previously  existing  debt.  In  the  former  case 
no  injury  is  done  to  creditors.  Tliey  are  deprived  of  nothing  which  they 
would  have  had  if  the  transaction  had  never  taken  place. 

But  when  a  conveyance  is  made  to  satisfy  a  debt  created  at  the  time, 
then,  in  the  case  of  an  absolute  conveyance,  the  retaining  of  possession  is 
not  conclusive  evidence  of  fraud,  but  one  of  the  badges  of  fraud,  suscep- 
tible of  explanation.  So  it  may  be  in  the  case  of  a  mortgage ;  but  there 
is  then  a  difference  in  the  application  of  the  princi})le.  When  there  is  an 
absolute  conveyance,  it  is  in  the  natural  course  of  things  that  the  posses- 
sion should  be  changed  ;  and  when  this  is  not  done,  we  are  set  upon 
^^go-i  looking  for  *some  secret  motive  or  understanding  which  has 
-^  induced  this  departure  from  the  ordinary  course.  But  it  is  not 
in  the  common  course  that  possession  should  be  transferred  when  a  mort- 
gage is  executed.  If  there  is  a  stipulation  that  possession  shall  be 
retained  till  condition  broken,  it  seems  to  me  that  it  comes  within  the 
principle  of  Cadogan  v.  Kennet,  Cowp.  432;  Arundel  v.  Phipps,  10  Ves. 
140,  and  that  class  of  cases  in  which  possession  was  held  not  to  be  fraudu- 
lent, because  in  pursuance  of  the  terms  of  the  deed.  But  if  there  be  no 
such  stipulation,  still  it  is  very  different  from  the  case  of  an  absolute  sale. 
It  is  the  common  understanding  and  practice  of  the  country,  that  posses- 
sion shall  not  be  taken  till  condition  broken.  It  is  a  conditional  sale  to 
provide  for  satisfying  a  debt,  and  in  conscience  and  equity  the  party  is 
not  entitled  to  his  satisfaction  until  the  debt  is  due  I  should  therefore 
say,  that  the  mere  circumstance  of  retaining  possession  until  condition 
broken,  is  not  of  itself  evidence  of  fraud.  The  possession  is  sufficiently 
explained. 

And  even  after  condition  broken,  it  is  still  different  from  the  case  of 
an  absolute  sale.  As  I  have  said,  in  the  latter  case,  it  is  the  common 
course  that  possession  should  be  transferred  with  the  title,  and  the  depar- 
ture from  the  common  course  is  to  be  accounted  for.  But  it  is  not  the 
comraoa  course  that  the  mortgaged  property  should  be  seized  the  mo- 


*328]  COLUMBIA,  JUNE,  1835.  253 

ment  the  condition  is  broken.  It  may  be  liarsh  to  do  so.  It  may  not 
be  in  the  party's  power  to  find  the  property,  or  he  may  not  be  al)le  to 
seize  it  without  comniittiiig  a  trespass.  Even  some  de.f^rcc  of  ne,u;lect 
does  not  infer  fraud.  Still  I  think  a  great  degree  of  neglect  in  leaving 
the  projjerty  in  the  mortgagor's  possession  after  condition  broken,  may 
be  a  badge  of  fraud  ;  though  not  so  strong  as  in  the  case  of  an  al)soIute 
sale.  It  is  one  among  the  circumstances  to  enable  a  Court  or  jury  to 
judge  of  the  character  of  the  transaction. 

in  this  case,  there  was  but  a  very  trifling  degree  of  neglect,  which  may 
be  further  accounted  for  by  the  plaintiff's  having  been  aware  that  liie 
slaves  were  liable  to  the  older  executions.  It  was  argued  that  this 
mortgage  was  not  given  for  a  debt  created  at  the  time.  The  note,  which 
is  the  evidence  of  the  debt,  was  given  at  the  same  time,  (a)  We  know 
nothing  of  the  consideration  of  the  *note,  but  it  is  not  impeached.  r*399 
The  only  circumstance  relied  on  to  show  that  it  was  given  for  a  ■- 
previously  existing  debt,  is  that  it  provides  for  the  payment  of  interest 
from  the  previous  first  of  January.  But  this  is  too  slight  to  warrant  the 
conclusion.  A  contract  might  have  been  entered  into  at  that  time,  with 
a  view  to  this  security,  which  was  not  regarded  as  executed  until  the  note 
and  mortgage  were  given.  There  are  many  ways  in  which  the  circum- 
stance may  be  accounted  for.  Whatever  consideration  was  paid,  may 
have  gone  to  the  use  of  creditors. 

The  motion  is  therefore  dismissed  and  the  decree  affirmed. 

Johnson,  J.,  and  O'Neall,  J.,  concurred. 


William  White  and  John  Blair,  Executors  of  Margaret  White, 
vs.  William  Yaughan,  Guardian  of  M.  E.  Harper. 

Testatrix  by  her  -will  gave  pecuniary  legacies  to  the  amount  of  ten  thousaml  and 
sixty  dollars,  and  several  specific  bequests  to  her  niece,  i\I.  E.  H  ,  and  others,  of 
negroes  and  other  property  including  her  Indian  leased  land,  and  then  directs, 
viz  :  "  I  further  -will  and  devise  that  my  negro  man  Will,  have  the  privilege  of 
choosing  his  master,  and  be  appraised  to  him  by  two  good  men,  and  that  all  my 
other  property  be  sold  and  the  proceeds  be  applied  towards  the  legacies  men- 
tioned -within,  and  the  remaining  sum  of  the  legacies  be  paid  by  M.  E.  H."  \Vill 
and  the,other  property  directed  to  be  sold,  were  sold  for  eight  hundred  and  ninety- 
four  dollars;  the  debts  amounted  to  three  hundred  and  seventy-eight  dollars. 
Held,  that  the  amount  of  the  price  of  Will  and  the  other  property  sold,  was  a 
fund  set  apart  for  the  payment  of  the  pecuniary  legacies,  and  was  exempted  from 
the  payment  of  the  debts ;  that  M.  E.  H.  should  make  up  the  deficiency  in  that 
sum,  to  the  pecuniary  legatees  ;  and  that  she  and  the  other  specific  legatees 
should  contribute  i-atably  to  the  payment  of  the  debts.  [*334] 

The  testatrix's  estate  at  her  death  consisted  entirely  of  personalty;  for 
the  land  mentioned  in  her  will,  was  (as  it  appeared  by  the  statement  and 
admission  of  counsel,)  Indian  land,  which  is  held  on  long  leases,  and  is 
therefore  a  chattel  real,  aud  assets  in  the  hands  of  au  executor  or  adminis- 

(a)  From  the  brief  (the  only  document  the  reporter  had  from  which  to  make  a 
report,  not  having  the  Chancellor's  decree,)  it  appears  that  the  note  was  dated 
21st  May,  1832,  and  the  mortgage  the  19th  June  following.  R. 


254  SOUTH    CAROLINA   EQUITY   REPORTS.  [*329 

trator  for  the  payment  of  debts.  She  by  her  will  made  the  following 
bequests,  viz: — To  different  persons  and  in  different  amounts,  the  sum  of 
$1060;  to  William  White,  a  negro  man  Anthony;  to  the  defendant's 
ward,  M.  E  Harper,  two  feather  beds,  one  bureau,  a  sorrel  horse,  a 
negro  woman  and  her  five  children  ;  and  to  John  G.  White,  her  (Indian) 
land.  In  the  ninth  clause  of  her  will,  she  makes  the  following  provision  : 
"I  further  will  and  devise  that  my  negro  man.  Will,  have  the  privilege  of 
choosing  his  master,  and  that  he  be  appraised  by  two  good  men,  which 
shall  be  the  price  for  which  he  is  io  he  sold;  also  that  all  my  other  j^f'O- 
perty  be  sold,  and  the  2^roceeds  to  be  applied  towards  the  legacies  men- 
tioned loithin,  and  the  remaining  sum  of  the  legacies  be  jjaid  by  Eliza 
Harper,''''  &c.  The  negro,  Will,  and  the  other  property,  sold  for  $894 — 
the  debts  of  the  testatrix  amount  to  $378.  The  only  question  in  the  case 
is  whether  the  debts  shall  be  paid  out  of  the  $894,  and  the  balance 
*^^nl  *°^  ^^^^^  ^^^^  applied  to  the  legacies,  leaving  the  deficiency  ( $544) 
-•  to  be  made  up  by  the  defendant's  ward;  or  whether  the  $894 
shall  be  applied  to  the  le'gacies,  and  tht  defendant's  ward  shall  pay  the 
balance,  $166,  and  in  common  with  the  other  legatees  of  specific  property, 
contribute  ratably  and  in  proportion  to  the  debts. 
The  case  was  heard  at  Lancaster,  July,  1834. 

De  Saussure,  Chancellor.  The  question  made  and  argued  was,  out 
of  what  fund  this  deficiency  was  to  he  raised.  For  the  plaintiff,  it  was 
insisted  that  the  debts  of  $3tS  should  be  paid  out  of  the  sum  of  $894 
produced  by  the  sale  of  Will  and  the  other  property  directed  to  be  sold, 
which  would  then  leave  the  balance  of  $516  to  be  applied  to  the  payment 
of  the  pecuniary  legacies  amounting  to  $1060,  which  would  leave  the 
balance  of  $544  of  the  pecuniary  legacies,  to  be  paid  out  of  the  estate 
bequeathed  to  Eliza  Harper,  subject  by  the  will  to  the  payment  of  the 
pecuniary  legacies. 

For  the  defendants  it  was  contended,  that  the  debts  ($318)  should  be 
paid  ratably  out  of  the  legacies,  in  proportion  to  their  respective  amounts, 
the  pecuniary  legacies  to  be  considered  specific  legacies  under  this  will. 
The  original  fund  to  pay  debts  is  the  personal  property  not  specifically 
bequeathed.  That  is  the  case  with  the  price  of  the  slave.  Will,  ($436,) 
which  is  more  than  sufficient  to  pay  the  debts.  The  sale  of  the  other 
property  applied  to  pay  the  legacies  will  leave  a  balance  due  on  the 
pecuniary  legacies,  which  is  charged  by  the  will  on  the  estate  devised  to 
Miss  Eliza  Harper.  It  would  be  a  singular  construction  of  the  will  to 
make  the  deficiency  payable  out  of  the  pecuniary  legacies  themselves, 
though  charged  expressly  on  the  particular  estate  given  to  Miss  Harper, 

It  is  ordered  and  decreed  that  the  defendant  do  pay  to  the  plaintiffs 
the  amount  of  the  deficiency  of  the  pecuniary  legacies  out  of  the  estate 
bequeathed  to  Miss  Eliza  Harper.     Costs  to  be  paid  out  of  the  estate. 

From  this  decree  the  defendants  appeal  on  the  following  grounds  : — 

1.  ^  That  by  the  will  the  whole  estate  is  disposed  of  without  making 
provision  for  the  debts,  and  therefore  these  are  to  be  paid  ratably  out  of 
each  legacy — the  pecuniary  legacies  to  be  considered  specific,  as  they  are 
*3311  ^^  ^®  V^^^  ^^^  ^^  specific  property  mentioned*  and  set  apart  in 
the  will ;  the  balance  only  between  the  amount  of  this  specific 
property  and  the  legacies  to  be  paid  by  defendant's  ward. 


*331]  COLUMBIA,  JUNE,  1835.  255 

2.  That  at  all  events,  Eliza  Ilarpers's  legacy  is  only  cliaro-cd  witli  tlie 
difference  between  the  sale  of  Will  and  the  other  property  whicli  anionnts 
to  $894,  and  $1060,  the  amount  of  pecuniary  legacies,  being  $1GG,  and 
the  Chancellor  decrees  $544  ;  which  includes  not  only  the  balance  of 
pecuniary  legacies,  but  the  debts  also. 

T.  WiUiams,  jr.,  for  the  appellant.  The  question  is  out  of  what 
particular  funds  shall  the  debts  be  paid  ;  it  is  not  whether  the  personal 
estate  shall  be  exempted  and  the  lands  charged — that  question  is  entirely 
different  from  the  present.  It  is,  whether  a  particular  portion  of  tlie 
personal  estate  is  not  exempted  under  this  will ;  and  that  as  the  balance 
of  personal  property  is  disposed  of  by  the  will,  and  no  provision  made 
for  the  payment  of  debts,  whether  the  legacies  may  be  abated  propor- 
tionably  for  the  payment  of  debts.  Nor  is  it  a  question  whether  the 
personalty  is  not  first  liable  for  the  debts.  If  the  defendant  were  seeking 
to  exempt  the  personal  property  and  to  create  a  charge  on  real  estate  for 
the  payment  of  the  debts,  nothing  short  of  an  express  declaration  in  the 
will  would  be  sufficient  for  this  purpose.  This  question  would  turn  on 
the  intent  to  change  the  7iature  of  real  estate  to  personal,  and  thus  to 
follow  the  fate  of  personal;  and  this  " ijitent^^  must  ho  plainly  and  ex- 
pressly set  forth.  This  is  admitted  to  be  the  law  ;  but  this  rule  does  not 
touch  the  case  before  the  Court.  Here  the  whole  estate  is  personal ;  for 
the  lands  are  within  the  Indian  boundary,  and  are  declared  to  be  personal 
property,  and  made  assets  by  law  in  the  hands  of  executors  and  adminis- 
trators to  pay  the  debts.  The  question  here  is,  whether  a  particular 
part  of  this  personal  estate,  to  wit :  the  negro  man.  Will,  and  the  other 
property  ordered  to  be  sold,  is  not,  by  the  clear  intent  of  the  testatrix, 
drawn  from  the  express  words  of  the  will,  exempted  from  the  payment  of 
debts.  I  conceive  such  is  the  case.  What  are  the  facts  ?  The  testator 
bequeaths  to  sundry  persons  pecuniary  legacies  to  the  amount  of  $1060. 
Suppose  the  testatrix  had  said,  "  I  order  my  executors  to  sell  my  lands, 
(describing  them,)  in  order  to  raise  the  money  for  these  legatees."  I  ask 
if  this  would  not  be  a  charge  on  these  lands  for  the  purpose  of  raising 
this  particular  fund  ?  Would  not  the  executor  have  the  power,  1st  to 
sell ;  2d  to  make  the  titles  ;  and  3d  to  apply  the  money  to  the  payment 
of  these  pecuniary  ^legacies,  and  w^ould  this  not  bar  the  heir  at  r^gqc) 
law  claiming  these  lands  ?  In  the  case  of  Dunlap  v.  Dunlap,  ^ 
which  is  found  in  4  Eq.  Rep.  323,  the  Court  ordered  this,  even  under  a 
will  not  executed  to  convey  the  lands,  and  ordered  debts  to  be  paid,  thus 
defeating  the  heirs  at  law  ;  because  a  testator  had  by  a  will  that  passed 
personal  property,  otherwise  disposed  of  the  personalty.  If  this  would 
create  a  charge  on  lands  for  the  payment  of  legacies,  it  would  also  do  it 
for  the  payment  of  debts. 

Now,  here  this  charge  is  expressly  set  forth  on  Will  and  all  the  other 
property  not  bequeathed,  to  pay  these  legacies. 

Suppose  no  charge  had  been  laid  on  Miss  Harper's  legacy  ?  It  is  a 
specific  legacy.  According  to  the  rule  contended  for,  if  the  debts  had 
been  $894 — the  amount  for  which  Will  and  the  other  property  was  sold, 
the  pecuniary  legatees  would  get  nothing,  notwithstanding  a  si)ecific 
property,  and  enough  too,  had  been  set  apart  by  the  testatrix  to  pay  the 
legacies. 


256  SOUTH   CAROLINA   EQUITY   REPORTS.  [*332 

Let  us  put  a  case.  The  testatrix  wills  to  her  niece  $1000;  and  says 
in  her  will,  "  I  hold  a  bond  on  A.  B.  for  $1000  :  I  direct  my  executor  to 
collect  that  money,  and  to  pay  off  this  legacy  with  interest  from  the  day 
of  my  death."  And  then  she  wills  her  negroes  by  name,  and  her  lands 
by  description,  and  all  her  other  property,  to  her  nephew.  The  executor 
collects  the  $1000  and  the  interest — but  the  testatrix  owes  $1000  and 
interest.  How  is  this  debt  to  be  paid  ?  If  the  bond  money  is  taken,  the 
pecuniary  legatee  loses  her  legacy  ;  because  the  balance  of  the  estate  is 
willed  in  specific  legacies.  If  the  $1000  is  considered  specific,  which  it 
ought  to  be,  and  the  bond  set  apart  to  the  payment,  this  fund  then  is 
liable  to  the  legacy ;  as  such  it  becomes  specific,  and  is  also  exempt  from 
payment  of  debts  :  and  thus  each  legacy  would  be  abated  proportionably 
and  the  debtor  paid.— 2  Roberts  on  Wills,  114 ;  2  P.  W.  23  ;  1  Robt. 
on  Wills,  76,  note;  4  Eq.  Rep.  323. 

My  view  of  this  will  is  this,  that  as  the  negro  man,  Will,  and  the  other 
property  ordered  to  be  sold,  amounting  to  $894,  were  set  apart  by  the 
testatrix  to  pay  the  pecuniary  legacies,  ihis  makes  the  special  charge  on 
this  property,  and  makes  the  pecuniary  legacies  specific,  the  same  as  if 
the  negro  and  the  property  had  been  willed,  instead  of  their  value.— See 
1  Roberts  on  Wills,  76,  note. — Where  the  profits  of  a  term  are  willed,  it 
is  as  specific  as  to  will  the  term  itself.  If  so,  the  negro  and  other  pro- 
perty willed  is  exempt  from  the  payment  of  debts  as  effectually  as  any 
other  specific  legacy. 

^qoq-]  *If  the  negro  had  died  before  sale,  and  the  property  ordered  to 
-'  be  sold,  being  personal,  had  also  perished,  would  Miss  Harper 
have  had  to  pay  the  whole  of  the  pecuniary  legacies  ?  I  think  not ; 
because  the  testatrix  says,  "the  balance  of  the  pecuniary  legacies," 
meaning  clearly  the  balance  between  the  price  of  Will  and  the  other  pro- 
perty, and  the  amount  of  the  pecuniary  legacies. 

Suppose  the  will  had  said,  "  I  appraise  Will  and  the  other  property  at 
$894,  this  sum  to  be  divided  between  my  niece  and  nephews,  who  shall 
get  $1060,  and  the  balance  to  be  paid  them  by  Miss  Harper?  Would 
she  be  liable  for  more  than  the  difference  between  $894  and  $1060  ? 
Certainly  not.  Now,  there  can  be  no  difference  between  ordering  the 
property  to  be  sold  and  to  be  appraised.  The  object  of  the  testatrix 
was  to  give  her  nieces  and  nephews  $1060.  To  raise  this  fund  she  says, 
sell  a  negro  and  other  property  for  what  they  will  bring,  and  let  Miss 
Harper  make  up  the  balance.  All  this  is  common  sense.  If  the  debts 
are  not  provided  for,  each  legatee  must  abate  his  legacy  proportionably. 
But  the  Chancellor,  by  his  decree,  orders  the  negro  and  other  property 
sold,  to  pay  the  debts,  and  then  orders  Miss  Harper  to  pay  up  the 
balance,  which  is  to  make  her  pay  the  debts.  The  will  says,  she  shall 
pay  the  balance, — meaning  between  what  the  negro  and  other  property 
sold  for,  and  what  the  pecuniary  legacies  amounted  to. 

M'Willie,  contra.  The  construction  of  the  will  of  the  testatrix  con- 
tended for  by  the  defendant  is  inadmissible,  because  the  pecuniary  lega- 
cies, in  the  event  of  other  property  not  being  sufficient  to  pay  them,  are 
directed  to  be  paid  out  of  the  legacy  to  Miss  Harper.  In  other  words, 
the  legacy  to  Miss  Harper  is  charged  with  the  pecuniary  legacies  ;  and 
the  requisition  of  the  will  is,  that  it  protect  and  pay  them.     The  con- 


*333]  COLUMBIA,  JUNE,  1835.  257 

strnction  contended  for  defeats  this  provision,  as  it  is  asked  to  reduce 
thera  for  the  jmrpose  of  paying-  debts.  This  ground  perhaps  is  not 
necessary,  as  the  negro  man,  Will,  is  specifically  betpieathed,  and  was 
sold  for  a  sura  more  than  sufficient  to  pay  the  debts,  and  certainly  consti- 
tutes a  fund  to  be  so  applied  before  the  pecuniary  legacies. — See  1  Eq. 
Rep.  512-13. 

O'Xeall.  J.  I  think  the  view  taken  of  this  subject,  by  the  defendant's 
counsel,  is  unanswerable.  It  is  not  necessary  that  I  should  repeat  argu- 
ments which  he  has  stated  clearly  and  with  great  force. 

*I  have  no  doubt  where,  as  in  this  case,  the  testatrix  sets  apart  r*qqi 
property  and  directs  pecuniary  legacies  to  be  paid  out  of  its  pro-  '- 
ceeds,  that  they  are  entitled  to  have  it  so  applied.     If  the  other  parts  of 
the  estate,  whether  specifically  devised  or  not,  be  sufficient  to  pay  the 
debts,  the  pecuniary  legacies  directed  to  bo  paid  out  of  a  particular  fund 
could  not  be  called  on  to  contribute  for  their  payment ;  for  the  testatrix 
has  indicated  a  clear  intention  that  that  fund  should  be  api»lied   to  a 
specific  purpose.     A  contribution  by  the  legatees  entitled  to  receive  it, 
would  throw  upon  the  legatee  directed  to  make  up  any  deficiency  which 
might  be  between  it  and  the  amount  of  the  legacies,  an  undue  proportion 
of  the  debts.     Indeed,  if  that  fund  was  made  first  applicable  to  the  debts, 
and  only  the  balance  left  was  to  go  to  the  extinguishment  of  the  pecuniary 
legacies,  the  result,  in  making  up  the  deficiency  to  them,  according  to  the 
words  of  the  will,  would  be  to  charge  the  defendant's  ward  with  the 
whole  debts  of  the  estate      Such  a  result  was  never  contemplated  by  the 
testatrix.     For,  after  directing  the  proceeds  of  Will  and  the  other  pro- 
perty to  be  applied  to  pay  the  pecuniary  legacies,  she  says,  "the  remain- 
ing sum  of  the  legacies  to  be  paid  by  Eliza  Harper."     These  words  are 
plain  and  unambiguous,  and  their  meaning  is  just  as  plain  as  if  the 
testatrix  had  known  how  much  her  personal  estate  directed  to  be  sold, 
would  produce,  and  had  said,  inasmuch  as  the  legacies  I  have  directed  to 
be  paid  out  of  this  fund  will  exceed  it  $1G6,  I  direct  that  sum  to  be  paid 
by  Eliza  Harper.     This  direction,  that  Eliza  Harper  should  pay  the 
difference  between  the  proceeds  of  the  sale  and  the  amount  of  the  legacies, 
not  only  shows  that  this  was  all  the  burthen  she  intended  to  cast  on  the 
defendant's  ward  on  their  account,  but  also  that  those  legacies  should  be 
paid  in  full.    The  consequence  of  this  is,  to  have  the  debts  to  be  paid  out 
of  the  property  specifically  devised. 

It  is  ordered  and  decreed  that  the  Chancellor's  decree  be  reformed  in 
the  following  particulars: — 1.  That  the  defendant,  as  guardian  of  M.  E. 
Harper,  do  pay  to  the  plaintiffs,  for  the  difference  between  the  proceeds 
of  the  sale  of  the  negro  and  the  other  i)roperty,  and  the  pecuniary  lega- 
cies, one  hundred  and  sixty-six  dollars  with  interest  from  one  year  after 
the  testatrix's  death  :  2.  That  he  do  contriljute  and  pay  toward  the  debts 
of  the  deceased  *such  sum  as  may  be  ascertained  by  stating  a  pro-  r^ooK 
portion — as  the  whole  value  of  tlie  property  be(pieathed  to  M.  E.  ^ 
Harper,  (after  deducting  therefrom  the  said  sura  of  §160,)  of  the  negro, 
Anthony,  bequeathed  to  William  White,  and  of  the  Indian  land  be- 
queathed to  John  G.  White,  is  to  the  whole  amount  of  the  debts  of  the 
deceased,  so  is  the  value  of  the  property  !)equcathed  to  M.  E  Harper, 
(after  deducting  $1G6  as  aforesaid,)  to  the  amount  to  be  paid  by  her  on 


258  SOUTH    CAROLINA    EQUITY    REPORTS.  [*335 

account  of  the  debts  of  the  testatrix.  And  it  is  referred  to  the  Commis- 
sioner to  ascertain  and  report  the  amount  of  the  contributions.  In  all 
other  respects  the  decree  is  affirmed. 

Johnson,  J.,  and  Harper,  J.,  concurred. 


Nathaniel  Gist,  v.  "Wm.  G.  Davis,  M'Dowall  &  Black,  and  James 

Hunt. 

That  a  former  decree  should  be  a  bar  to  another  bill,  it  must  appear  that  the 
rights  of  the  pnrties  were  considered  and  adjudged  ;  therefore,  where  the  plaintiff 
in  the  first  bill  did  not  show  any  interest  or  liability  which  required  the  aid  or 
interference  of  the  Court,  and  on  that  ground  his  bill  was  dismissed,  but  in  his 
new  bill  set  out  his  liability  on  a  bond  of  indemnity  connecting  him  in  interest 
with  the  parties  litigant :  Ilcld,  that  the  form?r  decree  was  not  a  bar  to  the  new 
bill.  [*342] 

The  question  considered  whether  a  party  may  in  contradiction  to  his  acknowledg- 
ment in  his  deed  show  that  the  consideration  has  not  in  fact  been  paid.  It  seems 
that  although  he  may  show  other  and  further  considerations  consistent  with  the 
deed  he  may  not,  except  in  case  of  fraud  or  usury,  contradict  the  deed  by  showing 
that  no  consideration  was  received    [*343] 

None  but  parties  and  privies  are  estopped  by  a  judgment. — Giving  a  bond  of  in- 
demnity to  the  sheriff  for  not  paying  over  money  to  a  claimant,  will  not  make  one 
a  privy  so  as  to  be  concluded  by  the  judgment  against  the  sheriff  for  the  money ; 
although  the  sheriff  gave  him  notice  to  defend  the  action  and  he  actually  did 
defend  it.  The  verdict  would  be  conclusive  against  him  in  action  by  the  sheriff 
on  the  bond,  but  not  as  to  others.  [*345] 

Plaintiff  advanced  money  to  a  manufacturing  company,  and  afterwards,  in  order  to 
secure  himself,  and  according  to  the  agreement  at  the  time  he  advanced,  took 
the  outstanding  title  to  the  lands  and  buildings  of  the  company  to  himself  from 
persons  having  the  legal  title,  it  not  being  in  the  company,  and  gave  his  bond  to 
convey  to  the  company  on  the  payment  of  the  money.  After  the  plaintiff  had 
advanced  the  money,  but  before  he  got  titles  defendants  obtained  judgment  against 
the  company,  and  the  plaintiff  afterwards  recovered  judgment  for  the  money 
loaned,  on  which  he  had  the  lands  and  buildings  of  the  company  sold  by  the  shei  iff, 
and  became  the  purchaser  at  a  sum  less  than  that  due  to  him,  and  took  a  deed 
from  the  sheriff,  paying  no  money  but  giving  his  bond  to  the  sheriff  to  indemnify 
him.  Defendants  brought  suit  at  law  against  the  sheriff  claiming  the  money  on  their 
senior  execution,  and  obtained  judgment,  and  was  about  to  enforce  execution  against 
him.  On  a  bill  by  the  plaintiff  it  was  held  he  was  entitled  to  relief,  and  defend- 
ants'judgment  at  law  against  the  sheriff  was   perpetually  enjoined.   [*oI9] 

The  following  is  the  brief  of  the  appellant's  counsel : — 
Bill  for  injunction,  to  cancel  a  bond,  and  for  general  relief.  The  bill 
charges,  that  in  the  year  1818,  there  was  a  Manufacturing  Company  on 
Tiger  river,  called  the  "  South  Carolina  Cotton  Manufacturing  Com- 
pany ;"  and,  in  that  year,  some  of  the  members  of  the  company  applied 
to  the  plaintiff  to  borrow  about  three  thousand  dollars.  That  the  com- 
pany, being  unable  to  give  personal  security,  agreed  to  give  him  a  lien 
upon  their  property,  both  real  and  personal,  on  the  faith  of  which  he 
loaned  them  the  said  sum  of  money ;  he  was  shortly  afterwards  informed 
that  the  defendant,  Davis,  was  a  member,  and  sanctioned  the  loan.  That 
when  the  company  were  about  to  give  the  lien  promised,  it  appeared  for 
the  first  time  to  the  plaintiff,  that  the  title  to  the  land  on  which  the  fac- 
tory stood,  with  all  the  machinery  and  buildings,   was  in  one  Benjamin 


*335]  COLUMBIA,  JUNE,  1835.  259 

Wofford,  anrl  he  was  under  the  necessity  of  advancing:  the  further  sum  of 
one  thousand  dollars,  in  order  to  obtain  a  lien  on  the  same;  and  upon 
this  sum  being  paid  to  Wofford,  with  the  consent  of  the  company,  he  ex- 
ecuted a  deed  in  fee  simple  to  the  plaintiff,  for  the  land,  includiMg  all  the 
buildings,  &c.  ;  and  the  plaintiff  executed  a  bond  to  the  company,  con- 
ditioned to  make  titles  upon  the  payment  of  the  sum  borrowed,  with  in- 
terest.    That  the  reason  the  *cotnpany  did  not  give  him  a  title  to  pggg 
the  forty  acre  tract  adjoining  the  sixty  acre  tract,  was  that  some  L 
misunderstanding  existed  as  to  the  boundaries,  and  the  title  bond  which 
had  been  given  by  Wofibrd  to  make  titles  to  one  Weathers,   from  whom 
the  company  purchased,  was  lost,  or  mislaid  :  and  the  reason  the  plaintiff 
did  not  obtain  a  lien  on  the  land  on  the  other  vside  of  the  river  was,  that 
the  company  had  not  acquired  a  title  to  it.     When  the  deed  from  Wof- 
ford to  him,  was  executed,  plaintiff  was  of  opinion  that  at   the  time  he 
took  the  deed  for  the  sixty   acres,  the  machinery,  buildings,  and  every 
thing  upon  it,  would  pass  with  the  land  ;  that  being  advised  afterwards, 
thatit  was  doubtful  if  the  machinery  were  attached  to  the  freehold,  he 
procured  a  deed  from  the  company,  dated  13th  of  iMarch,   1820,  for  the 
purpose  of  securing  his  claim,  upon  that  part   of  the  property  :  he  also 
obtained  from  one  Thomas  Stark,  a  deed  for  an  additional  portion  of  the 
machinery,  which  had  been  purchased  l)y  the  company  after  he  took  the 
first  deed  :  the  reason  he  took  the  deed  'from   Stark  was,   that  the  com- 
pany had  transferred  that  part  of  the  machinery  to   Stark— this  convey- 
ance  is   dated   21st   of  November,    1820.     The   plaintiff  having   been 
informed  about  the  last  of  March,  1821,  of  a  conveyance  of  all  the  lands 
of  the  company  to  Stark,  except  the  sixty  acres,  and  before  he  knew  they 
had  acquired  a  title  to  the  same,  immediately  called  upon  the   company, 
and  demanded  a  deed  from  Stark,  which  the  company  consented  he  might 
execute   to  plaintiff— this   deed   is   dated   21st  of  April,    1821.     Wof- 
ford executed  to  plaintiff  a  deed  for  the  forty  acres,  adjoining  the  sixty 
acres.  —  All  of  which  deeds  and  transfers  were  made  in  pursuance  of  the 
original  agreement,  that  plaintiff  should  have  a  lien  upon  all  the  property. 
That  plaintiff  does  not  know  at  what  time  the  company  acquired  a-  title 
to  the  said  land,  but  from  the  copy  of  a  deed  in  the  register's  office  of 
Spartanburgh  district,  it  appears  that  Weathers,  from   whom  they  pur- 
chased, conveyed  to  the  company  a  tract  of  three  hundred  acres,  which  he 
supposes  to  be  the  same,  on  the  14th  of  August,  1819,  and  the  same  was 
conveyed  to  Stark  by  the  company,  10th  of  January,   1820,  as  also  ap- 
pears by  a  copy   deed,   on  record  in   said   register's   office.     That   the 
plaintiff  never  heard  of  the  claim  of  M'Dowall  &  Black,  hereinafter  more 
particularly  mentioned,   until  about  the  last  of  January,    1820.     That, 
about  that  time,  Andrew  M'Dowall,  of  the   firm  of  M'Dowall  &  Black, 
called  at  his  house,  and  informed  him  of  the  nature  of  his  claim  against 
the  defendant,  Davis,  who  had  lately  been  a  member  *of  the  firm,   r^gg-j 
It  appeared  from  the  statements  of  M'Dowall,  that  one  Pena  was  L 
one   of  the  original  members  of  the  company,   and  that   M'Dowall^  & 
Black  had  purchased  his  interest,  amounting  to  four  shares,  in  the  capital 
stock,  and  some  time  afterwards  sold  their  interest  to  Davis,  and  took  a 
mortgage  upon  the  same.     The  plaintiff  informed  M'Dowall  that  he  had 
loaned  the  company  about  four  thousand  dollars,  (at  which  he  expressed 
great  satisfaction,)  and  that  the  company  had  agreed  to  give  the  plaintiff 


260  SOUTH    CAROLINA   EQUITY    REPORTS.  [*337 

a  lien  upon  all  the  property,  real  and  personal.  The  plaintiff  and 
M'Dowall  met  the  next  day  at  the  factory,  and 'it  was  agreed  upon  by 
and  between  them,  that  a  confession  of  judgment  which  M'Dowall  was 
about  to  take  from  tlie  company  should  not  interfere  in  any  manner  with 
his  claim,  and  shoukl  be  postponed  to  the  same — the  origin  and  character 
of  M'Dowall  &  Black's  claim  will  appear  by  a  mortgage  given  by  Davis, 
(exhibited,  with  the  bill.)  When  Davis  sold  to  the  remaining  members 
of  the  concern,  they  agreed  to  pay  M'Dowall  &  Black's  debt,  which 
Davis  was  owing  for  his  said  four  shares,  and  to  stand  in  his  place,  in  re- 
gard to  the  same.  The  confession  of  judgment,  was  for  the  purpose  of 
securing  the  same  debt.  A  judgment  was  confessed  by  the  Weavers 
[the  members  of  the  company]  to  Davis,  as  before  stated,  the  30th  of 
January,  1820,  and  was  not  entered  up  until  the  21st  of  October,  1820. 
The  plaintiff  also  obtained  a  judgment  against  the  Weavers,  on  the  27th 
of  Octol^er,  1820,  which  was  signed  the  8th  of  November,  1820,  -as  ap- 
pears by  the  record.  Plaintiff,  about  the  first  of  March,  1821,  addressed 
a  letter  to  M'Dowall  &  Black,  on  the  subject  of  their  claim  against  the 
Weavers,  and  amongst  other  things  gave  them  his  opinion  as  to  the 
prospects  of  obtaining  the  money  from  the  concern,  and  also  asked  leave  to 
sell  under  the  judgment  of  Davis,  as  he  did  not  wish  to  incur  their  dis- 
pleasure by  selling  under  his  Own.  From  this  letter,  it  will  appear  that 
plaintiff's  claim  was  to  be  preferred  to  the  claim  of  M'Dowall  &  Black, 
and  that,  in  their  answer,  dated  24th  of  March,  1820,  they  distinctly  ad- 
mit the  fact,  and  they  are  called  upon  to  exhibit  a  true  copy  of  the  letter 
referred  to,  or  produce  the  original  to  be  used  on  the  trial  M'Dowall 
&  Black  not  consenting  to  sell  under  their  judgment,  and  believing  there 
was  no  hope  of  being  paid  by  the  company  without  a  sale,  as  they  were 
on  the  decline,  on  the  day  of  1821,  the  plaintiff  directed  James 

Hunt,  who  was  then  sheriff  of  Spartanburgh  district,  to  levy  upon  the 
property,  by  virtue  of  his  execution,  which  he  did  ;  and  the  same  was 
*^^m  ^legally  brought  to  sale,  and  plaintiff  became  the  purchaser  at  the 
-■  price  of  $2G00,  he  being  the  highest  and  last  bidder  ;  and  the 
sheriff  made  him  a  deed  for  the  same,  dated  4th  of  October,  1821,  in 
consideration  of  the  said  sum  of  $2600  as  expressed  in  the  deed,  although 
no  money  was  paid,  nor  intended  to  be  paid  by  plaintiff,  as  he  then 
claimed,  and  still  claims  the  purchase  money,  in  satisfaction  of  his  said 
debt,  by  virtue  of  his  paramount  equity,  intending  the  said  sale  to  fore- 
close his  equitable  mortgage  upon  said  property,  and  thereby  rep9.y  him- 
self the  money  loaned  with  legal  interest ;  and  also  by  virtue  of  the 
agreement  made  with  M'Dowall  at  the  time  the  Weavers  confessed  the 
said  judgment  to  Davis ;  but  the  plaintiff,  notwithstanding  he  paid  no 
money  to  the  sheriff  at  the  time  he  executed  the  deed  aforesaid,  nor  in- 
tended to  pay  him  the  purchase  money  if  he  could  legally  avoid  it,  yet 
pledged  himself  to  Hunt  to  pay  him  the  purchase  money,  if  he  should 
ever  be  required  to  pay  it  to  the  said  William  G.  Davis,  or  M'Dowall  & 
Black,  and  promised  at  all  times  to  indemnify  the  said  James  Hunt 
against  any  injury  or  damage  he  might  sustain  in  consequence  of  execu- 
ting an  absolute  deed  for  the  said  land,  without  having  received  the  pur- 
chase money  for  the  same;  and  that  plaintiff  all  along- from  the  sale  down 
to  the  present  time,  promised  to  indemnify  him  against  the  judgment  of 
Davis;  and  in  pursuance  of  said  promise  on  the  26th  day  of  Jmie,  1832, 


*338]  COLUMBIA,  JUNE,  1835.  261 

executed  a  bond  of  indemnity  to  the  said  James  Hunt,  for  the  purpose 
before  stated.  Some  short  time  after  the  sheriff's  sale,  a  rule  of  Court 
was  served  upon  Hunt,  requiring  liim  to  show  cause  why  he  did  not  pay 
over  the  purchase-money  to  the  Davis  execution,  and  the  rule  was  re- 
sisted and  finally  abandoned.  From  that  time  plaintiff  rested  satisfied 
that  the  claim  of  Davis  would  not  be  allowed.  The  plaintiff  further 
states,  that  on  the  day  of  ,  182-,  a  suit  was  commenced  in   the 

Court  of  Common  Pleas  for  Spartanburgh,  in  the  name  of  the  said 
Davis,  against  the  said  Hunt,  for  the  recovery  of  the  said  sum  of  $2600, 
and  a  judgment  has  been  rendered  against  the  said  Hunt,  and  execution 
sued  out  thereon,  and  the  said  judgment  is  about  to  be  enforced  against 
Hunt  immediately  and  without  delay,  and  without  the  aid  of  this  Court, 
will  compel  him  to  pay  the  same  to  the  great  injury  of  the  plaintifi",  as 
he  is  liable  over  to  Hunt,  in  case  he  is  compelled  to  pay  said  judgment, 
so  that  it  appears  plaintiff  is  the  real  defendant  in  said  suit  at  law,  and 
Hunt  a  mere  nominal  defendant.  Plaintiff  would  here  submit  the 
*question,  whether  from  the  case  made  by  the  bill,  he  would  not  r^t-ooo 
be  entitled  to  be  paid  his  debt  in  preference  to  the  said  Davis,  '•  "^ 
even  supposing  his  judgment  is  legally  entitled  to  priority,  on  the  ground 
that  Davis  may  be  regarded  as  a  member  of  the  concern  ;  if  not  so  far 
as  to  make  him  liable  for  the  debts  of  the  company,  at  least  so  far  as  to 
make  his  shares  in  the  capital  stock  liable.  Plaintiff  states  that  he  is 
willing,  and  offers  to  surrender  all  claim  he  may  have  acquired  under  the 
sheriff's  sale,  inconsistent  with  the  equities  of  the  judgment  creditor,  and 
if  he  has  obtained  an  undue  advantage  in  the  sheriff's  sale,  he  consents  to  be 
made  responsible  in  any  manner  this  honorable  Court  may  order  and  di- 
rect. The  bill  charges  confederacy,  prays  for  an  answer,  a  perpetual 
injunction  against  the  Davis  judgment,  and  that  the  bond  of  indemnity 
to  Hunt,  may  be  delivered  up  to  be  cancelled,  and  for  general  relief,  &c. 
To  this  bill  an  amendment  was  filed,  which  is  in  substance  as  follows  : 
That  the  said  William  G.  Davis  having  obtained  a  judgment  against  the 
said  James  Hunt,  as  before  stated,  for  the  sum  of  $2600,  and  the  said 
Hunt  having  obtained  an  injunction  from  the  Court  to  restrain  further 
proceedings,  and  given  his  l)ond,  together  with  plaintiff  and  A.  W. 
Thomson  as  his  securities,  which  injunction  was  finally  dissolved,  plaintiff 
further  showeth  :  That  since  that  time,  he,  (being  as  before  stated  the 
real  defendant  at  law,  and  having  given  a  bond  of  indemnity  to  the  said 
Hunt,  about  the  time  he  executed  titles  to  plaintiff  for  the  said  tract  of 
land,  which  bond  he  has  discovered  since  the  filing  of  the  original  bill,  a 
copy  of  which  is  herewith  exhibited,)  has  filed  his  said  bill  praying,  for  the 
reasons  therein  stated,  for  an  injunction  to  stay  the  said  execution  of 
Davis,  upon  which  an  order  has  been  made,  ordering  and  directing  the 
suspension  of  all  further  proceedings  on  said  execution.  Plaintiff  further 
states,  that  notwithstanding  the  said  order,  an  action  at  law  has  been 
commenced  by  Davis  against  the  plaintiff,  Hunt,  and  A  W.  Thomson, 
upon  the  said  bond  of  injunction.  The  amendment  prays  for  an  order 
restraining  further  proceedings  on  said  bond,  and  for  other  and  furthei 
relief,  &c. 

To  this  bill  and  amendment,  the  defendants,  M'Dowall  &  Black,  pleaded 
in  bar  that  a  bill  was  filed  on  the  28th  of  March,  1827,  by  M'Dowall  & 
Black,  against  N.  Gist,,  the  present  plaintiff,  and  others,  and  the  answer 
Vol.  I.— 40 


262  SOUTH    CAROLINA    EQUITY   REPORTS.  [*339 

of  N,  Gist  put  into  the  same  ;  as  also  a  cross  bill  was  filed  by  the  said  N. 
-,  Gist  and  James  Hunt,  against  *the  defendants,  IM'Dowall  &  Black 
^^"-1  and  William  G.  Davis,  and  the  answer  of  M'Dowall  &  Black  put 
into  the  same — wherein  the  same  matters  were  put  in  issue,  as  by  the 
present  bill  of  the  said  N.  Gist  are  set  forth  and  put  in  issue,  and  the  same 
were  drawn  in  controversy  before  the  Court  of  Appeals  and  a  final  decree 
pronounced  thereon,  by  which  both  the  said  bills  were  dismissed  with  costs 
— and  pray  to  be  dismissed  without  further  or  other  answer,  &.c. 

The  pleadings  in  the  former  cases,  referred  to  in  the  pleas,  and  the 
decrees,  were  adduced. 

De  Saussure,  Chancellor.  On  an  inspection  of  the  papers  and  docu- 
ments, it  appears  to  me  that  the  matters  of  the  bill  and  the  amended  bill, 
were  completely  comprehended  in  the  former  proceedings,  and  the  ques- 
tions arising  thereon  have  been  adjudicated  by  the  decrees  of  the  Circuit 
Court  and  Court  of  Appeals.  Indeed  the  only  difference  in  the  case 
attempted  to  be  shown  by  the  counsel,  was  that  the  bill  in  the  former  case 
did  not  set  forth  that  N.  Gist  had  actually  given  a  bond  of  indemnity, 
but  only  that  he  had  promised  to  indemnify.  It  does  not  appear  to  me 
that  this  varies  the  case  at  all.  The  single  question  then  is,  is  there  any 
thing  in  the  case  to  prevent  the  application  of  the  rule  that  all  the  mat- 
ters and  questions  made  by  this  bill,  having  been  adjudicated  upon  by  the 
former  decrees,  the  parties  are  concluded  thereby,  and  no  new  litigation 
is  open  to  them.  The  plaintiff  has  not  made  such  a  new  case  as  ought 
to  induce  the  Court  to  open  the  door  of  litigation,  after  the  parties  have 
been  so  long  in  controversy. 

The  plaintiff  seems  to  have  been  somehow  involved  in  difficulties  and 
sustained  losses,  which  are  greatly  to  be  regretted  ;  but  they  do  not 
appear  to  have  been  caused  by  the  defendants ;  M'Dowall  &  Black,  who 
would  be  far  more  aggrieved  if  they  should  be  deprived  of  their  remedy, 
and  of  the  benefit  of  their  judgment  at  law ;  and  Mr.  Hunt  is  merely  a 
surety. 

It  is  therefore  ordered  and  decreed  that  the  plea  in  bar  be  sustained, 
and  that  the  injunction  heretofore  granted  in  the  case  be  dissolved.  Costs 
to, be  paid  by  the  plaintiff. 

From  this  decree  the  plaintiff  appealed  on  the  grounds  : 

1.  That  the  decree  is  erroneous  in  sustaining  the  plea  on  the  ground 
that  the  matters  in  controversy  were  tried  and  adjudged  in  the  former 
*S411  P^'oceedings ;  whereas,  by  reference  to  the  proceedings  *it  will 

-■  be  seen  that  the  plea  is  not  true  in  fact,  and  cannot  be  sustained 
in  law. 

2.  That  the  case  made  entitles  the  plaintiff  to  relief. 

Herndon  and  A.  W.  Thompson,  for  the  appellant. 
Henry,  contra. 

Harper,  J.  I  am  sufficiently  clear  that  the  plea  in  the  present  case 
cannot  be  supported,  whatever  may  be  the  merits  of  the  case  itself.  The 
rule  is  unquestionable,  that  where  the  same  matter  has  been  determined 
by  a  decree  between  the  same  parties,  that  will  be  a  bar  to  a  new  bill. 
But  then  it  must  appear  that  the  rights  of  the  parties  were  actually  con- 


*341]  COLUMBIA,  JUNE,  1835.  263 

sidered  and  adjudicated.  In  Brandlyn  r.  Ord,  1  Atk.  571,  Lord  llard- 
Avickc  laid  down  the  rule  where  the  defendant  pleaded  a  former  suit,  and 
that  the  Court  implied  that  there  was  no  title  where  they  dismissed  the 
bill,  that  this  was  not  sufficient;  they  must  show  that  it  was  ren  adjudi- 
vala,  an  absolute  determination  in  the  Court  that  the  plaintiff  had  no  title; 
and  that  a  bill  dro))ped  for  want  of  prosecution  is  never  to  be  pleaded  as 
a  decree  of  dismission  in  bar  to  another  bill.  See  also  Pickett  v.  Log- 
gon,  14  Ves.  230.  If  a  party  by  his  bill  makes  out  an  imperfect  case, 
so  that  a  demurrer  would  hold,  and  the  bill  be  dismissed  on  that  ground, 
I  am  not  aware  that  this  has  ever  been  held  a  bar,  if  by  a  new  bill  he  can 
make  out  a  good  case.  In  Child  v.  Gibson,  2  Atk.  603,  the  Chancellor 
said,  "every  plea  that  is  set  up  as  a  bar,  mnst  be  ad  .idem."  As  I 
understand  the  facts  of  the  case  from  the  opinion  of  the  Chancellor,  there 
had  been  a  former  bill  against  the  defendant  as  executor,  for  an  account. 
The  new  bill  was  also  for  an  account,  but  stating  specific  facts  of  the 
executor's  having  made  interest  on  legacies  specifically  bequeathed.  The 
Chancellor  sustained  the  plea  to  so  much  of  the  bill  as  sought  a  general 
account,  but  directed  it  to  stand  for  an  answer  relative  to  a  demand  for 
interest.  He  says,  "it  is  extremely  hard  to  say,  that  because  the  plaintiff 
failed  in  the  case  which  he  made  on  the  former  account,  that  now  he  has 
made  a  new  case,  and  brought  a  new  bill,  that  he  shall  not  be  allowed 
to  go  on,  but  be  barred  by  a  plea  of  a  former  decree  in  the  same  matter." 
So  in  Collins  V.  Gough,  V  Bro.  Par.  Ca.  94,  (quoted  2  Mad.  Ch.  249.) 
"  A  plea  of  a  former  deed  for  the  payment  of  titles,  where  a  modus  and 
the  lands  alleged  to  be  covered  by  it,  were  imperfectly  *stated,  so  r^r,,^ 
that  the  Court  could  not  direct  an  issue,  was  held  not  to  be  a  bar  L  "^  -^ 
to  a  bill  for  establishing  the  modus.''''  "Former  bill  depending  pleaded 
in  bar  of  a  second ;  but  the  latter  had  some  new  matter.  Plea  allowed 
with  the  actual  costs  ;  but  defendant  to  answer  the  second  bill,  and  the 
former  dismissed  with  twenty  shillings  costs."  2  Bridg.  Dig.  Tit.  Lis. 
Pendens,  2,  referring  to  Crofts  v.  Wortley,  1  Ch.  Ca  241.  That  is  to 
say  the  plea  was  sustained  so  as  to  give  costs,  but  the  defendant  was 
directed  to  answer  the  latter  bill  which  contained  the  whole  case.  The 
cases  in  which  the  plea  of  a  former  decree  has  been  sustained,  such  as  Bell 
t'  Read,  3  Atk.  590,  were  those  in  which  the  case  made  by  the  former 
bill  was  in  every  respect  the  same. 

Is  the  case  made  by  the  two  bills  we  are  considering  the  same  ?  The 
foraier,  after  stating  the  circumstances  of  plaintiff's  claim,  the  sale  of  the 
land  by  the  sheriff.  Hunt,  the  purchase  by  plaintiff,  and  the  deed  executed 
to  him  by  Hunt,  by  which  he  discharged  him  of  the  purchase-money, 
without  its  being  actually  paid,  prays  an  injunction  to  restrain  M'Dow.ili 
<fe  Black  from  proceeding  against  Hunt.  In  the  present  bill  it  is  further 
stated,  that  upon  Hunt's  executing  the  deed  to  plaintift",  plaintiff  promised 
to  indemnify  him,  and  afterwards,  in  pursuance  of  his  promise,  executed 
a  bond  of  indemnity,  on  which  he  will  be  liable  if  M'Dowall  &  Black's 
judgment  should  be  enforced  against  Hunt.  Do  these  make  the  same 
case?  The  Chancellor  says,  in  his  decree,  that  "the  only  difference  i:i 
the  case  attempted  to  be  shown  by  the  counsel  was,  that  the  bill  in  the 
former  case  did  not  set  forth  that  N.  Gist  had  actually  given  a  bond  of 
indemnity,  but  only  that  he  had  promised  to  indemnify.  It  docs  not 
appear  to  me  that  this  varies  the  case  at  all."    Now,  the  former  bill  of 


264  SOUTH   CAROLINA    EQUITY    REPORTS.  [*342 

Gist  and  Hunt  does  not  set  forth  any  promise  to  indemnify  ;  unless  it  be 
meant  tliat  from  the  fact  of  taking  the  deed,  there  resulted  a  liability  to 
pay  the  purchase-money,  from  which  such  a  promise  would  be  implied, 
notwithstanding  the  acknowledgment  of  the  receipt  of  the  money  in  the 
deed.  Nor  does  any  such  promise  appear  in  any  part  of  the  proceedings. 
The  present  plaintiff,  iu  his  answer  to  the  former  bill  of  M'Dowall  &  Black, 
only  says  that  he  "  does  not  remember  that  James  Hunt,  the  sheriff,  ever 
called  on  him  for  the  purchase-money  of  said  property  ;  but  if  he  had,  this 
defendant  would  not  have  paid  him,  as  he  was  confident  that  it  was  due  to 
j^„  -,  this  defendant  under  the  liens  above  stated."  On  the  contrary,  *the 
-J  former  bill  of  Gist  and  Hunt  was  dismissed,  so  far  as  respects 
Gist,  exclusively  on  the  ground  that  he  had  shown  no  interest  in  himself 
or  liability  to  Hunt,  which  authorized  hiin  to  interfere  between  the  other 
parties,  or  call  for  the  aid  of  the  Court.  It  is  said  in  the  opinion  of  this 
Court,  that  "  it  does  not  appear  so  far  as  the  effect  of  the  judgment  is 
concerned,  that  he  needs  any  relief  He  has  both  land  and  money  in  his 
own  hands.  Hunt  made  him  a  conveyance  and  discharged  him  of  the 
purchase-money,  and  M'Dowall  &  Black  may  enforce  their  judgment 
against  Hunt;  yet  on  principles  of  law.  Hunt  cannot  recover  over  against 
Gist."  It  is  added,  "  To  be  sure,  if,  as  suggested,  he  has  given  a  bond  of 
indemnity  to  Hunt,  he  may  be  liable  on  that ;  not  as  being  bound  by  the 
judgment,  but  as  being  rendered  liable  by  his  own  act."  The  existence 
of  such  a  bond  was  surmised  iu  argument,  but  the  quotation  shows  that  it 
forms  no  part  of  the  case  then  made,  but  was  expressly  excluded  from  the 
consideration  of  the  Court.  Can  it  be  said  that  the  rights  of  the  plain- 
tiff, (if  he  has  any,)  in  consequence  of  his  liability  on  that  bond,  were 
actually  adjudicated  by  the  Court  ? 

It  seemed  to  be  argued,  however,  on  the  part  of  the  plaintiff,  for  what 
purposes  it  is  difficult  to  conceive — as  if  this  opinion  of  the  Court  were 
erroneous,  and  that  from  the  facts  stated  iu  the  former  bill,  a  promise  on 
the  part  of  Gist  to  indemnify  Hunt  would  be  implied. 

The  deed  acknowledges  the  receipt  of  the  money,  and  the  general  rule 
is  unquestionable,  that  a  party  shall  not  be  permitted  to  allege  anything 
in  contradiction  to  his  deed.  There  is  a  case,  however,  that  of  Sheppard 
V.  Little,  14  Johns.  310,  in  which,  notwitlistanding  such  an  acknowledg- 
ment in  a  deed,  evidence  was  received  to  show  that  the  consideration  had 
not  been  paid.  The  case  was,  that  the  plaintiff  being  indebted  to  a  third 
person  $180,  defendant  advanced  the  money  to  pay  that  debt,  and  plaintiff 
assigned  to  him  a  lease  worth  $500,  upon  agreement  that  he  should  sell 
it,  reimburse  himself,  and  pay  over  the  surplus  to  plaintiff.  Defendant 
sold  the  lease,  but  refused  to  pay  over  the  surplus,  and  plaintiff,  bringing 
his  action,  was  permitted  to  show  these  facts.  The  determination  is 
rested  upon  the  cases  in  which  evidence  has  been  received  to  show  an 
additional  consideration  beyond  that  expressed  in  the  deed,  and  those  in 
■which  evidence  has  been  received  to  contradict  or  show  a  mistake  in  a 
*344l  ^*^^^'P*-  ^"t  t'^6  *authority  of  that  case  may  well  be  questioned. 
-J  In  the  case  of  Curry  v.  Lyles,  decided  by  this  Court,  2  Hill,  404, 
evidence  was  received  to  show  a  further  consideration  than  that  expressed 
in  the  deed.  But  the  authorities  which  establish  that  such  an  averment 
may  be  made  or  such  evidence  given,  go  upon  this — that  it  is  not  to  con- 
tradict the  deed,  but  is  consistent  with  it.     The  principle  is  explained  in 


*344]  COLUMBIA,  JUNE,  1835.  265 

Mildeway's  case,  1  Co.  176,  that  if  no  consideration  be  expressed,  yet  a 
consideration  may  be  shown ;  or,  if  it  be  said,  for  divers  considerations,  a 
particular  consideration  may  be  averred  ;   or  wliere,  as  in  the  case  of 
Villers  v.  Beamont,  there  quoted,  a  money  consideration  was  expressed, 
it  might  be  shown  that  the  deed  was  also  in  consideration  of  marriat^e  ; 
because,    as   is   said,   "although   there   was   a   particular   consideration 
mentioned  in  the  deed,  yet  an  averment  in  the  same  case  might  be  made 
of  another  consideration,  which  stood  with  the  indenture  and  was  not 
contrary  to  it."     See  also  the  cases  on   the  same  subject,  collected  by 
Philii)S,  in  his  Treatise  on  Evidence,  p.  424,  et  seq.     There  is  no  English 
case  determined  on  any  other  principle,  unless  upon  charges  of  fraud, 
usury,  &c.     But,  can  it  be  said  that  when  a  party  acknowledges  the 
receipt  of  money  by  his  deed  he  does  not  contradict  the  deed  by  showing 
that  the  money  was  not  received  ?     Then,  as  to  the  cases  respecting 
receipts  :  a  receipt  is  not  a  contract;  it  is  merely  an  admission  of  a  fact ; 
and  if  the  fact  be  not  true,  the  party  is  not  estopped  to  show  tlie  truth 
by  writing  merely.     But  is  there  any  doubt  but  that  a  party  is  estopped 
by  that  which  he  recites  or  admits  in  his  deed  ?     The  decision  in  Shep- 
pard  V.   Little,  seems  not  to  be  sustained  by  authority  or  reasoning  ; 
though  it  strikes  me  that  the  case  might,  perhaps,  have  been  rightly  de- 
termined on  the  score  of  the  defendant's  fraud.     But  admit  the  authority 
of  that  case  in  the  fullest  manner.     An  express  agreement  was  proved 
that  the  defendant  was  to  sell  the  lease  and  pay  over  the  surplus.     But 
suppose  no  such  agreement  had  been  shown,  and  nothing  had  appeared 
but  the  mere  facts  that  defendant  had  advanced  the  $180  and  received  a 
transfer  of  the  lease,  for  the  expressed  consideration  of  $500  acknowledged 
to  be  received.     Could  the  Court  have  implied  the  agreement  ?     There 
is  nothing  in  the  case  or  in  any  other  case  to  warrant  it      I  suppose,  in 
the  case  before  us,  that  the  sheriff,  Hunt,  knowing  the  facts,  and  taking 
upon  himself  to  know  the  law,  and  being  satisfied  that  Gist  was  entitled 
to  the  money,  executed  the  deed,  intending  to  ^discharge  him  and  r^^ote^ 
take  upon  himself  the  risk  of  being  made  liable  to  M'Dowall  and  •- 
Black.     On  what  principle  could  the  Court  imply  a  promise  to  indemnify 
on  the  part  of  Gist  ?     But  this  was  the  precise  case,  as  it  appeared  from 
the  pleadings  and  evidence  on  the  former  bill.     Nothing  was  shown  but 
the  purchase  and  the  execution  of  the  deed  acknowledging  the  receipt  of 
the  consideration;  and  in  the  absence  of  any  showing  to  the  contrary, 
parties  must  be  supposed  to  have  intended  what  they  have  done.     It 
may  be  further  observed,  that  if  any  promise  could  be  implied,  it  would 
not  be  a  promise  to  indemnifj'-,  as  the  Chancellor  supposes,  but  to  pay 
ihe  money;  but  could  we  imply  such  a  promise  in  contradiction  to  the 
express  statement,  that  he  claimed  the  money  as  his  own  (of  course  with 
Hunt's  knowledge)  and  would  not  have  paid  it  if  demanded  ? 

I  conclude,  therefore,  that  the  plaintiff  has  made  out  a  new  case  by  his 
present  bill ;  that  he  is  not  bound  by  the  former  decree,  and  that  the 
plea  must  be  overruled. 

And  here  I  might  properly  stop — the  plea  Ijeing  the  only  matter  now 
before  us.  But  the  whole  merits  of  the  case  (about  the  facts  of  which 
there  does  not  appear  to  be  any  dispute)  were  fully  gone  into,  and  it 
may  save  litigation  and  expense,  that  the  views  of  the  Court  should  be 


^66  SOUTH    CAROLINA    EQUITY    REPORTS.  [*315 

cxyiressed.  Of  coarse,  if  there  is  any  misconception  of  facts,  the  parties 
will  not  be  concluded. 

It  is  said  in  the  former  opinion  of  the  Court,  that  although  the  sheriff, 
Hunt,  is  concluded  by  the  judgment  at  law,  yet  Gist  is  not  concluded,  not 
having  been  a  party  to  the  suit.  None  but  parties  or  privies  are  bound 
by  a  judgment.  As  the  case  then  appeared,  he  would  not  be  regarded 
as  privy.  A  question  arises,  whether  by  giving  the  bond  of  indemnity, 
as  is  now  shown,  he  did  not  make  himself  privy,  so  as  to  be  bound  ;  espe- 
cially if  he  had  notice  to  defend  the  suit,  (of  which  there  seems  little 
doul)t)  as  well  as  that  he  did  iu  fact  defend  it.  But  before  going  into  that 
question,  I  shall  consider  the  case  as  it  would  stand  if  there  were  no  such 
judgment,  or  as  if  the  suit  at  law  were  still  depending.  It  is  held  iu  the 
former  opinion  of  this  Court,  tliat  if  the  purchase-money  had  been  actually 
paid  over  to  the  sheriff,  the  plaintiff  would  have  been  entitled  to  it;  and 
I  refer  to  the  reasoning  of  that  opinion  for  the  grounds  of  the  conclusion. 
And  he  would  have  been  entitled  to  it  on  equitable  principles,  and  might 
have  sustained  a  suit  in  equity  for  it.  It  is  true,  he  might  have  brought 
^„  „-,  *an  action  for  money  had  and  received  ;  but  that  action  is  in  the 
*-'  nature  of  a  bill  in  equity.  It  would  have  been  a  case  of  concur- 
rent jurisdiction,  and  he  might  have  chosen  his  jurisdiction.  So,  if  the 
sheriff  had  paid  over  the  money  of  his  own  accord  to  M'Dowall  and 
Black,  the  suit  might  have  been  maintained  against  them.  A  man  may 
recover  his  money  from  any  one  into  whose  hands  it  may  come.  And  it 
would  have  been  immaterial  if  the  money  had  been  recovered  of  the 
sheriff  by  suit.  There  would,  then,  have  been  no  ground  for  regarding 
Gist  as  privy  to  the  suit,  or  estopped  by  the  judgment  to  show  a  prefer- 
al)le  title  to  the  money.  And  if  such  a  suit  had  been  brought,  he  might 
have  brought  his  bill  against  both  parties  to  enjoin  it  and  establish  his 
own  claim  to  the  money.  But  instead  of  paying  the  money,  he  gave  the 
bond  of  indemnity.  If  the  suit  at  law  were  still  depending,  he  would 
liave  precisely  the  same  ground  of  equity  (or  a  clearer  one  as  being  liable 
on  the  bond  of  indemnity)  to  enjoin  that  suit  and  establish  his  own  claim. 
And  this  right  he  still  has,  unless  the  judgment  at  law  must  be  regarded 
with  respect  to  him  as  res  adjudicata. 

I  come,  then,  to  inquire  if,  as  I  suppose,  the  present  plaintiff  had  notice 
of  the  suit  at  law  and  was  in  truth  the  real  defendant,  whether  he  is 
estopped  by  the  judgment.  And  certainly  it  should  seem  that  he  ought 
to  be  so  bound.  Certainly  the  plaintiff  does  not  appear  to  come  within 
the  reason  of  the  rule  which  declares  that  none  but  parties  are  bound  by 
a  verdict  or  judgment — that  he  had  not  an  opportunity  to  give  evidence 
or  cross-examine  witnesses.  It  is  essential  to  the  just  adrainistratiou  of 
law,  that  no  one  should  be  condemned  without  having  an  opportunity  of 
being  heard.  But  it  is  an  equally  well-settled  principle,  and  necessary  to 
the  peace  of  society,  that  when  he  has  once  been  heard,  he  shall  thence- 
forward be  silent ;  that  when  he  has  once  had  an  opportunity  of  litigating 
before  a  tribunal  of  competent  authority,  he  shall  not  bring  into  question 
again.  Where  a  party  has  had  an  opportunity  of  defending  himself  fully 
at  law,  equity  will  not  relieve.  Winthrop,  Todd  &  Wiuthrop,  v.  Sur- 
vivors of  Lane,  Sou  &  Traser,  3  Eq.  Rep.  324-5,  et  note.  Maxwell  v. 
Conner,  1  Hill's  Ch.  Rep.  22.  It  was  urged  with  some  degree  of  perti- 
nacity, by  the  counsel  on  the  part  of  the  plaintiff,  that  the  proper  defence 


*316]  COLUMBIA,  JUNE,  1835.  267 

was  offered  to  tlie  Court  of  law  and  rejected,  and  that  tliis  forms  a  pcround 
of  relief.  But  this  seems  to  be  contrary  to  the  fact,  as  appears  from  the 
report  of  the  presiding  Judge,  made  to  this  Court  *on  the  trial  at  r*o ,  v 
law,  and  as  is  now  stated  by  the  same  Judge.  Evidence  was  L'***' 
offered  to  show  that  the  title  of  the  land  was  iu  the  purchaser.  Gist ;  but, 
as  determined  in  that  case,  this  would  not  have  been  a  defence.  In 
Maxwell  v.  Conner,  the  defence  had  been  offered  at  law  and  rejected, 
and  it  was  held  to  have  been  the  defendant's  laches  that  he  did  not 
appeal.  But  certainly  there  was  no  such  ground  of  appeal  in  the  case  at 
law  of  Davis  v.  Hunt.  The  ground  of  appeal  taken  (see  2  Bail.  415,) 
"  that  the  presiding  Judge  erred  in  rejecting  evidence  that  the  Weavers 
had  neither  right,  title  nor  interest  in  the  land  sold  by  defendant,"  is 
inconsistent  with  any  such  defence  having  been  offered.  The  very  ground 
of  the  defence  was,  that  the  Weavers  had  an  erjuitable  interest  in  tlie  land 
to  compel  a  sale  of  it,  and  this  alone  constituted  Gist's  title  to  the  money. 
My  own  impression  on  the  case  at  law  was,  that  Gist's  title  was  absolute, 
and  that  as  a  matter  of  indulgence  to  the  Weavers,  he  had  consented  to 
a  re-sale,  to  afford  them  the  chance  of  an  enhanced  price,  being  ignorant 
that  the  judgment  of  M'Dowall  and  Black  had  been  entered  previously 
to  his  own,  so  as  to  entitle  them  to  the  money. 

But  I  feel  constrained,  on  authority,  to  come  to  the  conclusion,  that 
although  in  point  of  fact  we  may  be  satisfied  that  Gist  was  the  real  de- 
fendant at  law,  yet,  in  a  legal  point  of  view,  he  cannot  be  so  considered  ; 
but  that  we  must  regard  that  judgment  as  res  inter  alios  acta — in  effect, 
that  this  is  a  case  in  which  he  has  a  right  to  be  twice  heard. 

There  is  no  question  respecting  the  general  rule,  that  none  but  parties 
and  privies  are  estopped  by  a  verdict  or  judgment.  Who  are  privies  ? 
According  to  Coke,  1  Inst.  [352,  a.]  there  are  "privies  in  blood,  as  the 
heir ;  privies  in  estate,  as  the  feoffee,  lessee,  &c.  ;  and  privies  in  law,  as 
the  lords  by  escheat ;  tenant  by  the  curtesie,  tenant  in  dower,  the  incum- 
bent of  a  benefice,  and  others  that  come  under  by  act  in  law,  or  in  the 
post.^'  All  persons  claiming  in  any  manner  under  either  parties,  will  be 
regarded  as  privies.  "  Hence  the  depositions  of  witnesses  in  another 
cause  in  proof  of  a  fact,  the  verdict  of  a  jury  finding  a  fact,  or  the  judg- 
ment of  the  Court  on  facts  found,  although  evidence  against  the  parties 
and  all  claiming  under  them,  are  not  in  general  to  be  used  to  the  preju- 
dice of  strangers." — Per  De  Grey,  C.  J.,  in  Duchess  of  Kingston's  case, 
11  State  Tri.  261.  Now,  can  Gist  be  regarded  as  claiming  under  the 
sheriff,  Hunt  ?  The  latter  was  merely  a  stakeholder,  *for  the  r^:o^o 
person  entitled  to  the  money.  I  may  observe  here,  that  the  giving  ^ 
of  notice  to  defend  the  suit,  has  nothing  to  do  with  determining  whether 
the  parties  were  or  were  not  privies.  That  relates  to  another  matter, 
which  I  shall  hereafter  consider.  If  one  should  come  by  finding  into  the 
possession  of  a  chattel,  which  was  claimed  by  two  other  persons,  and  be- 
ing sued  by  one,  should  defend  himself  by  setting  up  the  title  of  the 
other,  a  verdict  against  him  would  be  no  evidence  against  the  other 
claimant,  in  a  subsequent  suit  for  the  same  chattel ;  and  though  he  had 
given  him  notice  to  defend  his  title,  this  would  be  supererogatory  ;  he 
would  still  be  a  stranger  to  the  first  suit. 

There  is  a  class  of  cases  in  which  verdicts  have  been  held  to  be  evi- 
dence, and  sometimes  conclusive  evidence,  against  persons  neither  parties 


268  SOUTH    CAROLINA   EQUITY    REPORTS.  [*348 

to  tlie  suit  nor  privies.  As  in  the  case  of  Green  v.  The  New  River  Com- 
pany, 4  T.  R.  589,  where  a  master  had  been  sued  and  damages  recovered 
against  liira  for  the  neglect  of  his  servant,  it  was  held  by  the  Court  that 
the  verdict  would  be  evidence  in  an  action  by  the  master  against  the  ser- 
vant, not  as  to  the  fact  of  the  injury,  but  the  quantum  of  damages.  This 
case  is  said  by  Philips,  p.  228,  to  be  no  exception  to  the  rule  which  for- 
bids a  verdict  to  be  evidence  against  any  but  parties  or  privies.  The 
verdict  was  not  res  adjudlcata  as  to  the  servant,  but  constituted  or  evi- 
denced the  very  damage  which  the  master  had  sustained.  But  the  other 
party  would  have  nothing  to  do  with  this.  He  might  sue  both  master 
and  servant ;  but  a  verdict  for  or  against  one  would  be  no  evidence  in  an 
action  against  the  other.  So  in  the  cases  in  which  a  vendee,  being  sued 
for  property,  gives  notice  of  the  suit  to  the  vendor  who  has  warranted 
his  title.  Here  the  very  undertaking  of  the  vendor  is  to  defend  the  title, 
and  his  failure  to  do  so  when  notified,  constitutes  of  itself  the  cause  of 
action.  So,  where  the  surety  to  a  note  being  sued,  gave  notice  to  the 
principal  to  defend  the  action,  the  verdict  was  held  to  be  conclusive  in 
an  action  against  the  [)rincipal  by  the  surety.  Here  the  implied  contract 
between  the  principal  and  surety  was,  that  if  the  latter  should  be  com- 
pelled to  pay  the  money,  the  former  would  reimburse  him,  and  the  judg- 
ment by  which  he  was  compelled  to  pay,  went  to  make  up  the  cause  of 
action.  But  though  the  principal  had  had  notice  of  the  suit,  and  had  in  fact 
defended  it  and  failed,  the  verdict  would  have  been  no  evidence  in  a  sub- 
sequent suit  by  the  payee  against  the  principal.  Here  the  principal 
*qiQl  ^''^'^^d  have  *been  twice  heard.  So,  in  the  case  before  us,  if  Hunt 
-J  gave  Gist  notice  of  the  suit  at  law,  the  verdict  would  be  conclu- 
sive in  a  suit  by  him  on  the  bond  of  indemnity  against  Gist,  as  being  itself 
the  cause  of  action.  But  this  does  not  make  it  evidence  in  a  suit  be- 
tween Gist  and  M'Dowall  &  Black. 

The  case  of  Kinnerley.  f.  Orpe,  Doug.  51t,  seems  to  be  in  point.  In 
that  case,  the  plaintiff  had  recovered  in  an  action  for  trespass  on  a  fishery 
against  a  servant  of  C.  In  another  action  against  another  servant  of  C, 
who  committed  the  trespass  by  C.'s  command  in  order  to  try  the  right, 
the  former  verdict  was  offered  in  evidence  and  received  by  Baron  Perryn, 
who  held  it  to  be  conclusive.  But  on  a  rule  for  a  new  trial  before  the 
King's  Bench,  though  the  cause  went  off  on  another  point,  the  Court 
thought  the  evidence  admissible,  though  not  conclusive.  Here  certainly 
then  was  the  same  real  defendant,  though  not  the  same  nominal  one  in 
both  actions.  In  commenting  on  that  case,  however,  in  Outram  v.  More- 
wood,  3  East.  366,  Lord  Ellenborough  says  :  "  It  is  extraordinary  that 
it  should  have  been  for  a  moment  supposed  that  there  could  be  an  es- 
stopped  in  such  a  case.  It  was  not  pleaded  as  such;  neither  were  the 
parties  in  the  second  suit  the  same  as  those  in  the  first.  The  doubt  seems 
either  to  be,  whether  the  former  record  in  the  action  of  trespass  was  at 
all  admissible  in  evidence  upon  the  subsequent  action  against  the  de- 
fendant, who  was  not  a  party  to  the  former  action,  rather  than  as  to  any 
conclusive  effect  which  it  could  have  had."  He  evidently  inclines  to  the 
opinion  that  it  was  not  admissible,  and  indeed  it  is  difficult  to  reconcile 
its  admissibility  with  the  acknowledged  general  rule  on  the  subject. — 
But  if  we  regard  the  judgment  as  admissible  in  this  case,  yet  if  it  be  not 
conclusive,  I  think  Gist's  title  to  the  money  very  clear  on   the  reasoning 


*349]        COLUMBIA,  JUNE,  1835.  2G9 

of  the  former  opinion  of  the  Court,  (a)  Reg^ardinc;  the  plaintilT  tlion  as 
not  havhig-  been  a  party  to  the  suit  at  law,  nor  bound  by  the  judfj:;nicnt, 
but  coming  properly  and  for  the  6rst  time  to  establish  his  claim,  lie  has. 
made  out  a  clear  case  for  relief  But  though  we  have  held  that  Hunt  is 
concluded  by  the  judgment  at  law,  yet  we  cannot  afford  Gist  the  relief 
to  which  he  is  entitled,  *without  relieving  him  also.  If  thejudg-  r^o--^ 
ment  of  M'Dowall  &  Black  were  enforced  against  him,  he  would  L 
be  plainly  entitled  to  recover  against  Gist.  If  the  judgment  be  not  con- 
clusive against  Gist,  it  is  as  if  the  action  were  still  depending ;  in  which 
case  he  would  have  the  clearest  equity  to  enjoin  it.  The  judgment  must 
therefore  be  enjoined.  I  am  better  satisfied  to  arrive  at  this  result,  as  it 
seems  to  meet  the  true  merits  of  the  case. 

The  plaintiff,  however,  must  pay  the  costs.  The  present  suit  has  been 
rendered  necessary  by  his  neglect  in  failing  to  make  out  a  proper  case  by 
his  former  bill.  It  is  true  that  he  states  the  bond  of  indemnity  to  have 
been  out  of  his  possession,  and  only  recovered  since  the  filing  of  his  pres- 
ent bill ;  but  he  knew  of  its  existence  ;  it  does  not  appear  but  that  with 
proper  diligence  he  might  have  found  it  before  ;  or  if  he  could  not,  that 
he  might  not  have  established  its  existence,  contents  and  loss.  The  for- 
mer bill  says  nothing  of  the  bond,  nor  does  it  charge  any  liability  to 
Hunt,  which  was  the  plaintiff's  only  ground  of  equity. 

It  is  ordered  and  adjudged  that  the  decree  of  the  Chancellor  be  re- 
versed, and  the  defendant's  plea  be  overuled. 

Johnson,  J.,  concurred, 

O'Neall,  J.,  dissenting.  I  dissent  from  this  opinion  on  every  ground 
assumed  to  give  the  plaintiff  relief.  My  concurrence  in  the  former  opin- 
ion in  equity  was  altogether  in  the  result,  not  in  the  jirinciples  or  reason- 
ing by  which  my  brother  Harper  established  Gist's  right  to  sell  and  ob- 
tain the  benefit  of  Weavers'  equitable  estate  in  the  manner  in  which  he  did. 
The  case  of  Davis  v.  Hunt,  2  Bail.  412,  was  decided  correctly.  The 
principle  laid  down  in  it,  "that  only  the  defendant's  interest  in  the  land, 
whatever  that  might  be,  was  sold  in  the  present  instance,  and  if  the  pur- 
chaser bought  his  own  land  it  was  his  own  folly,"  is  good  law,  and  it  does 
not  cease  to  be  good,  when  equity  is  called  on  to  administer  it.  Tliat 
principle  excludes  Gist,  as  I  think,  from  relief  both  at  law  and  in  equity. 
The  plea  in  law  is,  I  think,  good  :  the  very  matter  now  decided  was,  as 
I  conceive,  adjudged  in  a  contrary  way  on  the  former  bill.  That  the 
judgment  at  law  is  conclusive  against  Hunt,  is  admitted  :  it  is  also  ad- 
mitted that  if  he  was  compelled  to  pay  that  judgment,  he  could  sue  Gist 
on  his  bond  of  indemnity,  give  the  recovery  in  evidence,  and  compel  him 
*by  the  judgment  of  a  Court  of  law,  to  pay  the  recovery  in  JDavis  r*qci 
V.  Hunt.  If  this  does  not  make  Gist  a  privy  in  law,  I  confess  I  '- 
do  not  know  what  would.  He  stands  exactly  as  Hunt  does,  and  is  con- 
cluded. 


(a)  In  McDowall  &  Black  vs.  Gist  and  Others,  and  Gist  and  Hunt  vs.  McDowall 
&  Black,  Columbia,  May  1833. 


270  SOUTH    CAROLINA   EQUITY    REPORTS.  [*35  L 


Elijah  Hinson,  Administrator  of  Phil.  Starke,  v.  James  B.  Pickett. 
John  Myers,  Administrator  of  B.  Starke,  v.  James  B.  Pickett. 

On  what  grnund?  motions  for  re-henrings  or  bills  of  review,  will  be  granted  The 
cases  on  the  subject  reviewed    [*3-3'i] 

A  reheai'iiig  will  not  be  granted  on  the  ground  of  newly  procured  evidence  which 
would  have  materially  varied  the  case  on  trial,  it  must  appear  that  the  evidence 
was  discovered  since  the  decree,  and  of  which  the  party  could  not  have  had  the 
benefit  in  the  first  instance.  Motion  for  re-hearing  refused,  where  it  appeared 
that  the  party  knew  of  the  evidence  before  trial,  and  could  by  proper  diligence 
have  |irocured  it.  [*;r)57] 

Rule  laid  down  that  a  rehearing  in  Chancery  will  not  be  granted,  on  the  ground  of 
after-discovered  oral  evidence.  [*o59] 

Fairfield,  July  1834. 

De  Saussure,  Chancellor.  The  petition  by  the  defendant,  Mr. 
Pickett,  is  for  a  re-hearing. 

The  petition  which  accompanies  this  decree,  sets  forth,  that  since  the 
decrees  of  the  Court  of  Equity,  and  of  the  Court  of  Appeals  in  the  year 
1832,  whereby  it  was  decided,  that  the  sale  of  certain  negroes  (the  sub- 
ject of  the  dispute  in  the  above  cases)  by  the  said  James  B.  Pickett,  to 
one  James  A.  Knighton,  was  not  a  real  sale,  but  colourable  and  collu- 
sive, the  said  defendant,  James  B.  Pickett,  has  discovered,  and  is  pre- 
pared to  submit  ample  testimony,  to  establish  the  fact  that  he  did  on  the 
30th  December,  1829,  really  and  bona  fide  sell  and  deliver  to  the  said 
James  A.  Knighton,  all  his  right,  title  and  interest,  in  and  to  the  slaves 
in  dispute  :  that  is  to  say,  he  has  procured  the  testimony  of  James  A. 
Knighton  himself,  who  resided  in  distant  parts  at  the  time  of  the  trial ; 
also  the  original  bill  of  sale  given  by  defendant  to  said  Knighton,  and 
the  testimony  of  the  subscribing  witness  to  said  bill  of  sale,  Jeremiah 
Gaither,  (who  was  examined  on  the  trial  of  the  said  cases,  to  prove  the 
sale  of  the  negroes,  but  was  excluded  from  giving  evidence  upon  the 
most  important  parts  of  the  transaction,  on  account  of  the  non-pro- 
duction of  the  bill  of  sale,)  and  which  bill  of  sale  it  was  not  then  in  the 
power  of  the  defendant  to  produce,  being  then  in  the  possession  of  James 
A.  Knighton,  who  resided  some  where  far  distant  in  the  Western  country. 
Also  the  testimony  of  Nathan  Knox,  (lately  discovered,)  who  knew  the 
negroes,  or  some  of  them,  whilst  they  were  in  the  possession  of  said 
Knighton,  in  the  Western  country,  and  will  prove  that  Knighton  held 
and  used  them,  and  finally  sold  some  of  them  as  liis  own  property, 
*35'>1  *^"^^  ^'^^  ^^  ^^^  ^^  ^^^6  property  of  the  petitioner,  (J.  B.  Pickett.) 
"'-'  Also  the  lately  discovered  evidence  of  Joseph  Hinson,  the 
brother  of  the  plaintiff  Hinson,  and  the  evidence  of  Mr.  Austin  Peay, 
that  before  the  petitioner  (Pickett)  sold,  said  negroes  to  Knighton,  he 
actually  offered  to  sell  all  his  interest  therein  to  the  plaintiff,  E.  Hinson, 
upon  just  and  reasonable  terras,  to  wit,  the  payment  of  the  money  due  to 
him  from  Baldy  H.  Starke,  then  deceased. 

The  petitioner  humbly  insisted,  that  upon  the  above-stated  testimony 
being  heard,  it  would  be  decided  by  the  Court  that  he  has  incurred  no 
liability  to  the  plaintiffs,  or  either  of  them,  by  selling  the  said  negroes  to 
Knighton  :  or,  if  he  should  be  held  liable  at  all,  that  he  ought  to  be  held 
liable  for  the  value  of  the  negroes  on  the  30th  December,  1829,  and  hire 
until  that  time,  (the  day  on  which  he  sold  to  Knighton,)  instead  of  their 


*352]  COLUMBIA,  JUNE,  1835.  271 

value  on  tlie  11th  June,  1833,  and  hire  until  that  time,  the  day  on  wliieh 
it  would  have  been  his  duty  to  deliver  up  the  said  nefjroes  to  tlie  plain- 
tiff, Hinson,  as  administrator  of  Pliil.  Starke  ;  (if  he  had  not  in  faet  sold 
them)  inasmuch  as  from  the  testimony  above  referred  to,  and  ready  to  be 
produced,  it  will  appear  manifestly  tiiat  the  petitioner  could  not  ])ossibly 
produce  or  deliver  up  the  aforesaid  negroes  in  conformity  with  said 
decree,  which  he  would  gladly  have  done  had  it  been  in  his  power.  Tlie 
])etitioner  therefore  prayed  for  a  re-hearing  of  said  cases  on  the  matter 
above  stated.  The  Commissioner  made  his  report  in  these  cases  on  the 
reference  ordered  by  the  Court  of  Appeals  under  the  decrees,  and  excep- 
tions were  tiled.  These  have  been  argued  and  decided  at  the  present 
Court. 

The  counsel  for  the  defendant  also  argued  the  motion  for  a  re-hearing 
on  the  petition  above  stated,  and  I  am  now  to  decide  thereon. 

It  is  a  serious  application  for  a  grave  purpose,  and  should  be  well 
considered.  That  the  Court  should  set  its  face  inexorably  against  appli- 
cations for  re-hearings,  would  imply  a  degree  of  confidence  in  its 
infallibility  which  would  illy  comport  with  the  humility  and  modesty 
becoming  men  and  judges.  That  it  should  yield  too  readily  to  them, 
would  lead  to  such  renewed  and  prolonged  litigations  as  would  weary 
out  the  patience,  and  exhaust  the  funds  of  suitors  of  small  fortune  It 
therefore  requires  the  exercise  of  a  sound  discretion  and  judgment,  to 
know  in  what  cases  it  would  be  proper  to  grant  or  refuse  them.  As  far 
as  my  mind  possesses  these  faculties,  they  shall  be  exercised  in  this  cause. 
To  *induce  the  Court  to  grant  a  re-hearing  after  decree,  there  r^o^g 
must  be  a  strong  case  made  that  a  clear  mistake  has  been  made, 
and  that  new  evidence  has  been  discovered,  which  materially  varies  the 
case  from  that  which  was  made  at  the  former  hearing. 

In  Mitford's  pleadings  (afterwards  Lord  Redesdale)  it  is  laid  down  ; 
"  That  the  object  of  a  bill  of  review  is  to  procure  an  examination  or 
reversal  of  a  decree  made  upon  a  former  bill  signed  and  enrolled.  It 
may  be  brought  upon  error  at  law  appearing  in  the  body  of  the  decree 
itself,  or  upon  the  discovery  of  new  matter.  If  it  be  sought  to  reverse  a 
decree  signed  and  enrolled  upon  discovery  of  some  new  matter,  the  leave 
of  the  Court  must  be  first  obtained  :  and  this  will  not  be  granted,  but 
upon  allegation  upon  oath  that  the  neic  matter  could  vot  he  jn'odiiced, 
or  used  by  the  party  claiming  the  benefit  of  it,  at  the  time  when  the  de- 
cree was  made.  If  the  Court  be  satisfied  that  the  new  matter  is  relevant 
and  material,  and  such  as  might  probably  have  occasioned  a  different 
determination,  it  will  permit  a  bill  of  review  to  be  filed."  Mitford,  p. 
7S-9.  To  render  a  bill  of  review  necessary,  the  decree  sought  to  be 
impeached  must  have  been  signed  and  enrolled.  If  this  has  not  been 
done,  a  decree  may  be  examined  and  reversed  upon  a  species  of  supple- 
mental bill  in  nature  of  a  bill  of  review,  where  any  new  matter  has  been 
discovered  since  the  decree.  And  a  decree  not  signed  and  enrolled,  may 
be  altered  upon  a  re-hearing  without  the  assistance  of  a  bill  of  review,  if 
there  be  sufficient  matter  to  reverse  it  appearing  upon  the  former  pro- 
ceedings. The  investigation  of  the  decree  must  be  brought  on  by 
petition  for  re-hearing.  The  office  of  the  supplemental  bill  in  nature  of  a 
bill  of  review,  is  to  supply  the  defect  which  occasioned  the  decree  upon 
the  former  bill.     It  is  necessary  to  obtain  the  leave  of  the  Court  to  bring 


272  SOUTH   CAROLINA   EQUITY   REPORTS.  [*353 

a  supplemental  bill  of  this  nature  ;  and  the  same  affidavit  is  required  for 
this,  as  is  necessary  to  obtain  leave  to  bring  a  bill  of  review  on  discovery 
of  new  matter. — Mitford,  81-2.  Such  is  the  clear  exposition  of  that 
learned  equity  lawyer,  Mr.  Mitford,  of  the  course  of  the  Court  on  this 
subject.  In  this  he  is  supported  by  other  elementary  works,  as  well  as 
by  decided  cases.  See  2.  Comyn's  Dig.  Tit.  Chancery,  letter  Gr.  p.  252, 
letter  (Y.  5,)  p.  321.  And  that  great  master  of  Equity,  Chancellor 
Kent,  has  made  corresponding  decisions.  See  Wiser  &  Blachley,  2 
John.  Ch.  Rep.  488,  and  Livingston  v.  Hubbs,  3  John.  Ch.  Rep,  124. 
^.,.  -.  Nor  *has  our  own  Court  of  Equity  been  barren  of  decisions  on 
^  this  subject. 

Before  I  refer  to  them,  however,  it  is  proper  to  notice,  that  as  we  have 
no  enrolment  of  decrees  in  this  State  according  to  the  English  and  New 
York  practice,  the  signature  of  the  decree  by  the  Chancellor  of  the 
Circuit  Court,  and  by  the  Judges  of  the  Court  of  Appeals,  with  delivery 
to  the  recording  officer  to  be  recordevl,  is  held  to  be  equivalent  to 
enrolment. 

I  should  also  notice,  that  prior  to  December,  1824,  there  existed  no 
Court  of  Appeals;  and  the  Chancellors  more  readily  listened  to  appli- 
cations for  re-hearings,  to  enable  them  to  revise  their  own  errors  or 
oversights. 

In  the  case  of  Brailsford,  and  Wife,  v.  Hey  ward.  Executor  of  Heyward, 
2  Eq.  Rep.,  p.  34,  the  Court  granted  a  motion  for  re-hearing,  certainly  on 
looser  grounds  than  would  now  be  listened  to.  The  petition  for  a  re- 
hearing was  on  the  ground  of  error  in  law  on  the  face  of  the  decree,  in 
deciding  that  the  defendant  was  accountable,  and  accountable  without 
deduction.  The  Court  granted  the  re-hearing,  but  decided  after  the 
argument  that  the  first  decree  was  correct. 

In  the  case  of  Burn  v.  Administrator  of  Poaug,  3  Eq.  Rep.  596,  610, 
&c.,  a  petition  for  a  bill  of  review  or  re-hearing  was  rejected  by  the 
Court,  because  the  petition  did  not  make  a  case  which  comes  within  the 
rules  as  to  bills  of  review — for  there  is  no  error  apparent  on  the  face  of 
the  decree — nor  any  allegation  of  new  matter  affecting  the  justice  of  the 
case,  which  could  not  have  been  (procured)  used  at  the  time  of  the  first 
decree — nor  is  the  petitioner  entitled  to  a  re-hearing  ;  as  the  facts 
existing  in  the  decree,  do  not  warrant  the  conclusions  drawn  from  them 
by  the  petitioner,  but  support  the  decree. 

In  the  case  of  Harvey  v.  Murrell,  in  Harper's  Eq.  Rep.  257,  there  was 
a  petition  for  leave  to  file  a  bill  of  review,  on  the  ground  of  the  discovery 
of  new  matter.  The  new  matter  was  the  inventory  and  appraisement  of 
the  estate  of  John  Murrell,  deceased,  and  a  receipt  which  was  in  the 
hands  of  the  executor,  the  existence  of  which  was  not  known  at  the  time 
of  the  trial.  The  Court  decided  that  the  application  should  be  dis- 
charged, because,  if  the  inventory  had  been  considered  essential  in  the 
investigation  of  the  case,  it  could  have  been  easily  procured  at  the 
Ordinary's  office,  where  it  was  recorded  ;  and  having  neglected  to  do  so, 
*3551  f"^'"'S^*^d  J^o  ground  *for  the  application  ;  and  as  to  the  receipt, 
it  was  irrelevant  to  the  subject  in  litigation,  and  could  not  have 
varied  the  case. 

lu  the  case  of  Haskell  v  Raoul,  in  1  M'C.  Ch.  22,  28,  32,  it  was  de- 


*355]  COLUMBIA,  JUNE,  1835.  273 

cided,  by  the  tliennevv  Court  of  Appeals,  that  the  petition  forare-hoarino- 
should  not  be  granted. 

The  Court  then  examined  the  grounds  on  which  bills  of  review  and 
applications  for  re-hearings  were  granted  in  England,  and  in  the  Courts' 
of  this  country,  (see  pp.  28,  29,  30,)  and  concurred  in  the  preceding 
decisions.  Tlie  Court,  in  page  30,  denied  the  propriety  of  allowing  bills 
of  review,  in  cases  of  alleged  error  of  law,  on  the  face  of  the  decree  of  the 
Supreme  Court ;  though  it  admitted  that  a  bill  of  review  for  newly-dis- 
covered evidence  might  be  granted. 

The  Court  also  cited  and  relied  on  the  case  of  Perkins  &  Lang,  decided 
by  the  old  Court  of  Apj)eals  in  Equity,  by  which  it  was  decreed  that  a 
bill  of  review  lies  where  there  is  a  discovery  of  new  matter  made  since 
the  decree,  which  new  matter  the  party  applying  could  not  have  had  the 
benefit  of  in  the  first  instance;  making  a  new  case,  and  one  proper  for 
equity  jurisdiction.  In  that  case,  it  being  clearly  shown  that  there  was 
evidence  (a  deed)  newly  discovered  after  the  decree,  and  whicii  had  been 
in  the  possession  of  the  other  party,  and  not  disclosed,  the  Court  over- 
ruled the  demurrer  to  the  bill  of  review. 

The  decision  of  the  old  Court  of  Appeals  in  equity,  in  another  case, 
illustrates  the  course  of  the  Court,  and  the  great  caution  used  in  granting 
re-hearings,  and  directing  new  trials.  In  the  case  of  the  Administrator 
of  Jenkins  v.  The  Administrator  of  Smith, (a)  at  law  a  verdict  was  obtained 
for  the  amount  of  a  note  of  hand,  given  by  the  deceased  Smith  to  the 
deceased  Jenkins  for  $5000.  After  the  verdict  and  judgment  at  law,  the 
administrator  of  Smith  was  informed  by  three  gentlemen  that  there  had 
been  no  consideration  for  the  note,  which  had  been  given  to  Jenkins  for 
a  special  l^urpose,  and  that  transaction  not  being  carried  into  effect,  the 
note  ought  to  have  been  cancelled.  The  Court  of  law  refused  to  grant 
a  new  trial,  because  the  newly  discovered  evidence  was  parol.  The 
administrator  then  filed  his  bill  in  equity  for  relief  against  the  note.  It 
appeared  clearly  by  the  evidence  of  three  witnesses  that  there  had  not 
been  any  consideration  for  the  note  which  was  given  to  carry  into  effect 
an  operation  of  Smith's  own,  but  which  failed,  and  he  dying  very  soon 
after,  Jenkins  kept  the  note,  and  *he  then  dying,  his  administrator  r^^q-p 
brought  suit  on  the  note.  The  Court  of  Equity  gave  relief,  but  •-  ' 
required  the  most  clear  and  positive  testimony  that  the  evidence  was  not 
known  to  the  administrator  on  the  trial  at  law. 

In  the  case  now  before  the  Court,  the  petition  is  to  grant  a  re-hcaring 
(or  bill  of  review)  on  the  ground  of  facts  discovered  since  the  decree  of 
the  Circuit  Court  of  Equity  and  Court  of  Appeals,  which  arc  relevant  to 
the  merits  of  the  case,  and  which  would  materially  vary  the  case  formerly 
made,  and  entitle  the  defendant  to  a  decree. 

The  alleged  discovery  of  new  matter  is  stated  as  follows  :  That  the 
defendant,  James  13.  Pickett,  has  procured  the  testimony  of  James  A. 
Knighton  himself,  (to  whom  the  alleged  sale  was  made)  who  resided  in 
distant  parts  at  the  time  of  trial :  also  the  original  bill  of  sale  given  by 
defendant  to  said  Knighton  ;  and  the  testimony  of  Gaither,  the  subscribing 
witness  to  said  bill  of  sale.  And  the  testimony  of  Mr.  Nathan  Knox, 
(lately  discovered,)  who  knew  the  negroes,  or  some  of  them,  ia  possession 

(a)  Not  reported. 


274  SOUTH    CAROLINA   EQUITY    REPORTS.  [*356 

of  James  Knighton,  in  the  western  country,  wlio  used  them  as  his  own,  and 
sold  some  of  them  as  his  own  property ;  and  also  the  hitely  discovered  testi- 
mony of  Josejjh  Hinson,  tlie  brother  of  plaintiff,  and  the  evidence  of  Mr. 
Austin  Peay,  that  defendant,  before  he  sold  the  negroes  to  Knighton, 
actually  ofl'ered  to  sell  all  his  interest  in  them  to  the  plaintiff,  Hinson. 

We  must  now  examine  whether  these  allegations  make  such  a  case  as 
entitles  the  defendant  to  a  re-hearing  or  bill  of  review,  according  to  the 
rules  above  laid  down.  It  is  not  pretended  (for  it  would  have  been 
absurd  to  do  so)  that  the  defendant  had  discovered  the  evidence  of  Mr. 
Knighton  and  the  bill  of  sale  since  the  decree,  but  that  he  had  procured 
it  sul)scquently.  He  knew  perfectly  well  who  was  the  person  to  whom 
he  alleged  he  had  sold  the  slaves,  and  that  he  had  given  a  formal  bill  of 
sale  for  the  slaves.  This  was  not  a  discovery  of  new  evidence.  He  knew 
he  had  executed  a  bill  of  sale,  and  had  delivered  the  negroes.  He  knew 
that  the  validity  and  the  reality  of  that  sale  was  in  question.  It  was 
alleged  by  the  bill  to  be  collusive,  and  a  mere  cover  to  remove  the  slaves 
out  of  the  jurisdiction  of  the  Court,  and  cut  of  the  reach  of  persons  claim- 
ing an  interest  in  them.  The  bill  made  it  a  question,  and  the  answer  met 
the  question.  The  defendant  then  was  fully  aware  that  he  was  called  upon 
^^^-,  to  support  the  sale  by  *proofs.  And  his  counsel  would  advise  him, 
-^  of  course,  what  proofs  were  necessary.  Nor  could  there  be  any 
complaint  of  want  of  time,  for  the  bill  ap[)ears  on  its  face  to  have  been 
filed  on  the  2yth  January,  1830,  and  the  cause  was  not  brought  to  a 
hearing  till  the  ITth  July,  1832,  which  was  a  period  of  about  thirty 
months  ;  giving  time  enough  to  have  procured  the  evidence  from  Europe, 
and  even  from  Calcutta. 

If  then  the  party  neglected  to  take  proper  measures  to  obtain  the  evi- 
dence necessary  to  sustain  his  case  in  due  time,  it  is  his  own  fault,  and  he 
has  himself  alone  to  com})lain  of.  That  he  is  thus  in  default  is  manifest 
from  the  fact,  that  the  evidence  in  question  now  presented  to  the  Court, 
was  all  procured,  even  after  the  bearing  of  the  cause  in  July,  1832,  for 
the  commission  on  which  the  examination  of  Knighton  was  taken,  bears 
date,  the  11th  May,  1838,  and  the  execution  of  it  by  the  examination  of 
Knighton,  is  endorsed  on  the  4th  of  June,  1833  ;  showing  how  promptly 
the  evidence  could  be  procured  when  the  party  was  in  earnest  to  pro- 
cure it. 

AVith  respect  to  the  rest  of  the  evidence  alleged  to  be  new  and  furnish- 
ing a  ground  for  a  re-hearing  or  bill  of  review,  the  greater  part  of  it  was 
in  the  knowledge  and  the  reach  of  the  defendant,  and  might  with  reason- 
aljle  pains  have  been  procured  before  the  trial  in  July,  1832. 

The  petition  alleged  the  discovery  (in  contra-distinction  to  the  pro- 
curement of  the  evidence)  of  the  evidence  of  one  Nathan  Knox,  who  knew 
the  negroes,  and  that  Knighton  treated  them  as  his  own,  and  not  as  the 
property  of  Pickett. 

This  evidence  would  have  been  merely  subsidiary  to  that  of  Knighton. 
And  it  would  have  been  perfectly  easy  before  the  trial,  to  have  procured 
evidence  from  any  persons  residing  near  Knighton,  (and  his  residence  is 
not  denied  to  have  been  known  to  Mr.  Pickett)  as  to  his  possession  of 
said  slaves,  and  of  his  treatment  of  them  as  if  they  were  his  own.  Even 
on  the  supposition  of  a  mere  pretended  sale,  the  possession  and  the  treat- 
ment would  seem  to  indicate  ownership  in  Knighton. 


*357]  COLUMBIA,  JUNE,  1835.  275 

The  question  then  recurs,  and  is  now  to  be  decided,  whether  the  peti- 
tion makes  such  a  case  of  newly-discovered  evidence,  as  entitles  the 
defendant  to  the  re-examination  of  the  decrees  of  the  Circuit  Court  and 
Court  of  Appeals. 

I  have  examined  the  sultject  very  fully,  very  carefully,  and  with  r:^Qco 
*some  anxiety  ;  for  the  answer  of  Mr.  Pickett  that  it  was  an  actual  L 
sale,  made  a  strong  impression  ;  and  if  the  evidence  which  produced  a 
strong  impression  had  been  contradicted,  either  at  the  original  hearing, 
or  by  newly-discovered  evidence  not  known,  and  not  attainable  before  the 
decree,  I  should  have  been  gratified  that  he  should  have  the  benefit  of  it. 
But  I  dare  not  violate  rules  made  with  great  deliberation  and  on  great 
experience,  to  gratify  my  wishes.  I  am  not  at  liberty  to  receive  newly 
procured  evidence  which  was  in  the  knowledge  and  reach  of  the  party,  as 
newly  discovered  evidence;  and  if  I  did  receive,  I  did  not  know  that  it 
would  materially  change  the  impression  made  by  the  other  evidence  in 
the  cause.  There  is  one  overruling  fact.  The  new  evidence  does  not 
show  how,  or  when,  any  payment  was  made  by  Knighton  to  Pickett. 
The  petition  must  therefore  be  refused. 

I  cannot  forbear  making  one  or  two  further  remarks  growing  out  of 
the  transaction. 

Mr.  Pickett  knew  that  he  did  not  hold,  nor  did  he  ever  pretend  to  hold 
the  slaves,  as  absolute  owner.  He  knew  that  he  had  but  a  limited  interest 
in  the  slaves,  yet  he  undertook  to  send  them  out  of  the  State,  and  out  of 
the  reach  of  those  persons  who  had  an  interest  in  them,  either  by  absolute 
sale  as  he  alleges,  or  by  an  improper  or  covinous  transaction  appearing 
to  be  a  sale.  This  was  exceedingly  improper.  In  the  exercise  of  his 
own  rights  and  powers,  he  should  have  respected  the  rights  and  in- 
terests of  others.  This  Court  grants  injunctions  to  restrain  persons, 
having  life  estates  in  slaves,  from  transferring  the  properly  out  of  the 
State,  on  the  ground  of  danger  to  the  interests  of  remainder-men.  It  is 
more  than  a  quarter  of  a  century  since  I  made  the  first  decree  on  the 
subject,  in  Lattimore  v.  Elgin,  4  Eq.  Rep.  26,  restraining  such  transfer, 
in  which  the  grounds  and  reasons  are  given  largely. 

The  Courts  have  followed  out  the  principle,  and  the  present  Court  of 
Appeals  has  gone  further.  Upon  very  slight  grounds  of  apprehension,  it 
has,  as  I  am  informed,  sanctioned  restraints  on  tenants  for  life,  from  car- 
rying slave  property  out  of  the  State. 

The  present  immense  and  unfortunate  emigration,  where   persons  are 
carrying  off  a  vast  number  of  slaves,  held  by  various  titles,  and  some  of 
them  for  short  terms,  seems  to  require  great  vigilance  *in  the    r^ocq 
Courts,  to  protect  and  preserve  the  interests  of  the  citizens  who  ■- 
remain  faithful  to  their  country. 

Defendant  appeals,  and  moves  to  reverse  the  decision  of  the  Chancellor 
in  this  case,  upon  the  ground: — 

That  the  facts  and  circumstances  set  forth  in  the  petition  for  a  rehear- 
ing are  sufficient  in  equity  to  entitle  him  to  the  same. 

Clarke  and  M'Dowell,  for  the  motion. 

M'Gall,  contra. 

Johnson,  J.    We  concur  entirely  in  the  conclusions  of  the  Chancellor, 


276  SOUTH    CAROLINA    EQUITY    REPORTS.  [*359 

and  propose  to  add  to  what  has  been  already  so  well  said,  only  a  few 
remarks  in  reference  to  the  j)oint  decided  in  the  case  of  The  Administra- 
tors of  Jenkins  v.  The  Administrators  of  Smith,  in  which  relief  was 
granted  on  the  discovery  of  oral  evidence  after  the  trial. 

The  rule  at  law,  as  long  and  well  settled  in  this  State,  is,  that  a  new 
trial  will  not  be  granted  on  the  ground  of  after-discovered  testimony.  It 
was  so  ruled  in  the  case  of  the  State  v.  Harding,  2  Bay,  267,  and  has 
been  followed  ever  since.  (See  Ecfert  v.  Des  Coudress,  1  Con.  Rep. 
G9  ;  Executors  of  Evans  i-.  Rogers,  2  Nott  &  M'Cord,  563.)  And  I  am 
unable  to  perceive  that  there  is  any  solid  foundation  for  a  different  rule 
in  Chancery.  The  delay  to  which  it  would  lead,  and  the  danger  of  sub- 
ornation of  perjury,  in  which  the  rule  is  founded,  is  precisely  as  great  in 
the  one  Court  as  the  other.  And  that  is  most  obviously  the  leaning  of 
Chancellor  Kent,  in  Livingston  v.  Hubbs,  3  John's  Ch.  Rep.  241, 
although  the  question  was  not  directly  decided  ;  and  such  is  obviously 
the  conclusion  to  be  drawn  as  to  the  rule  in  England,  from  the  remarks 
of  the  Lord  Chancellor,  in  Taylor  u.  Sharp,  3  P.  W.  371,  referred  to 
by  Chancellor  Kent.  During  our  present  sitting,  the  question,  came 
indirectly  before  the  Court,  in  the  case  of  Perry  v.  Mays,  in  which  the 
same  opinion  was  expressed.  The  question  cannot  depend  on  the 
number  or  the  respectability  of  the  witnesses — one  unsuspected,  irre- 
proachable witness,  would  obtain  credit  for  what  he  would  swear,  as  soon 
as  an  hundred  of  doubtful  and  suspicious  character,  yet  it  would  be 
difficult  to  discredit  an  hundred  of  such  witnesses,  who,  without  any 
*^rnl  concert  ^testified  to  the  same  facts,  and  which  were  in  their  nature 
J  probable.  I  am  therefore  very  decidedly  of  opinion,  that  a  re- 
hearing of  a  cause  in  Chancery  ought  not  to  be  granted  in  any  case,  ou 
the  o-round  of  after- discovered  oral  evidence. 


CASES    IN    CHANCERY 

ARGUED  AND  DETERMINED  IN  THE 

COlTiT  OF  APPEALS  OP   SOUTH  CAEOLOA 

Columbia — December,  1835. 


JUDGES  PRESENT. 


Hon.  DAYID  JOHNSON,  President. 
Hon.  J.  B.  O'NEALL.      I      Hon.  WILLIAM  HARPER. 


Ann  Bryan,  and  Others,  v.  John  Mulligan,  Executor  of Bryan, 

deceased. 

An  executor  or  administrator  is  only  required  to  manage  the  estate  in  his  charge  as 
a  prudent  man  would  his  own,  and  in  case  of  loss,  the  question  of  his  liability 
cannot  be  resolved  by  any  general  rule  but  depends  on  the  particular  circum- 
stances of  each  case.  [*36i] 

Generally  it  is  the  safer  rule  for  an  executor  to  sell  the  produce  of  the  estate  in  the 
market  usually  resorted  to;  but  when  acting  in  good  faith  and  under  a  reasonable 
expectation  of  a  greater  profit,  he  shipped  the  cotten  to  Liverpool,  instead  of 
selling  it  in  Charleston,  and  the  Liverpool  price  was  less  than  he  was  olfered  in 
Charleston,  he  will  not  be  chargeable  with  the  loss.  [*364J 

Heard  at  Barnwell,  February,  1835. 

This  was  a  bill  for  an  account  of  the  defendant's  administration  and 
management  of  the  estate  of  his  testator ;  and  came  on  for  a  hearing 
upon  an  exception  filed  by  the  plaintiffs  to  the  Commissioner's  report 
upon  the  accounts.  The  single  question  involved  in  the  exception,  and 
decided  by  his  Honor  will  be  sufficiently  understood  by  his  decree. 

De  Saussurr,  Chancellor.  This  case  came  up  on  the  report  of  the 
Commissioner,  and  an  exception  thereto  filed  by  the  plaintiffs.  The 
report  of  the  Commissioner  was  satisfactory  to  both  parties,  except  on 
one  point,  which  is  stated  in  the  following  words  : — "  For  that  the  Com- 
missioner, in  and  by  his  said  report,  ought  to  have  charged  the  defendant 
for  the  nine  bales  of  cotton,  which  he  *shipped  to  Liveri)Ool  in  the  r*Qg2 
year  1825,  with  the  price  which  the  said  cotton  might  have  been  L 
sold  for  in  the  Charleston  market,  and  with  the  interest  thereon." 

The  exception  involves  a  question  of  considerable  importance  to  the 
community.     The  testimony  presented  to  the  Court  was  as  follows  :  — 

William  R.  Ball,  testified  that  Mr.  Mulligan,  the  executor,  shipped  to 
Vol.  I.— 41 


278  SOUTH    CAEOLINA    EQUITY    REPORTS.  [*362 

Liverpool  nine  bales  of  cotton  of  the  crop  of  the  estate  of  the  year  1824. 
The  shipment  was  made  in  the  year  1825.  Mr.  Mulligan  informed  the 
witness  that  he  had  been  offered  24  cents  per  pound  for  it  in  Charleston. 
The  bales  of  cotton  made  on  the  plantation  generally  averaged  from  330 
lbs.  to  350  lbs.  weight.  It  appears  that  by  the  sales  in  Liverpool  a 
smaller  price  was  obtained  for  the  cotton  of  the  estate  than  the  price 
offered  to  Mr  Mulligan  in  Charleston  ;  and  the  object  of  the  exception  is 
to  charge  the  defendant,  the  executor,  with  the  larger  price.  It  is  ad- 
mitted that  Mulligan  shipped  cotton  of  his  own,  at  the  same  time,  and 
suffered  also  in  the  same  way;  and  there  is  no  doubt  that  he  intended 
what  he  honestly  thought  was  for  the  benefit  of  the  estate.  The  decision 
of  the  question  will  depend  upon  the  right  which  an  executor  has  to  act 
as  this  executor  has  done. 

In  my  judgment  he  had  no  right  to  enter  into  such  a  speculation  as  he 
did.  It  was  his  duty  to  send  the  crop  to  the  regular  markets  of  the 
country,  and  to  have  accepted  the  best  price  which  they  afforded  ;  and 
not  to  have  speculated  on  the  possibility  of  a  better  market  abroad. 
That  was  an  uncertain  risk — a  risk  not  only  of  the  price,  but  of  the 
capital  itself.  It  would  be  dangerous  to  estates  to  sanction  such  a 
course,  and  would  open  the  door  to  great  abuses,  especially  where  the 
intentions  of  executors  were  not  as  pure  as  those  of  this  executor  are 
admitted  to  have  been. 

It  is  therefore  ordered  and  decreed,  that  the  report  be  referred  back 
to  the  Commissioner,  with  instructions  to  correct  the  same,  by  charging 
the  executor  with  the  amount  of  the  nine  bales  of  cotton,  at  the  price  of 
24  cents  per  pound,  which  he  was  offered  in  Charleston,  and  refused. 

From  this  decree  the  defendant  appeals,  and  moves  that  the  same  may 
be  reversed,  or  modified,  on  the  following  grounds  :  — 

1.  That  the  law  imposes  no  other  restraint  upon  an  executor,  in 
selecting  a  market  for  the  disposal  of  the  produce  made  by  him  upon  the 
j^g„.j-|  estate  of  his  testator,  than  the  exercise  of  a  sound  discretion  *in 

-^  determining  as  to  which  of  the  several  markets  accessible  to  him, 
will  be  most  advantageous  for  the  estate  :  and  that  under  peculiar  cir- 
cumstances, he  would  not  only  be  justifiable  in  selecting  the  ultimate 
market,  although  in  a  foreign  country,  but  might  even  subject  himself  to 
deserved  censure  for  not  doing  so,  especially  as  he  might  guard  against 
all  the  risks  of  transmission  by  insurance  at  an  almost  insignificant  pre- 
mium. 

2.  That  whether  the  defendant,  in  sending  the  cotton  made  on  his  tes- 
tator's estate  to  Liverpool,  acted  within  the  limits  of  a  sound  discretion, 
or  indulged  a  wild  unjustifiable  spirit  of  speculation,  for  the  result  of 
which  he  should  beheld  chargeable,  depends  altogether  upon  the  circum- 
stances under  which  the  shipment  was  made  ;  and  his  liability  is  therefore 
a  question  of  fact,  upon  which  the  judgment  of  the  Commissioner  in  his 
favor,  ought  to  have  been  regarded  by  the  Chancellor  as  conclusive. 

3.  That  if  the  decision  of  the  Commissioner  were  not  regarded  as  con- 
clusive, still  it  was  not  impeached  by  any  evidence  ;  and  the  Chancellor 
has  decided  a  question  of  fact  as  a  question  of  pure  law,  without  reference 
to  the  evidence. 

4.  That,  in  point  of  fact,  the  propriety  of  sending  the  cotton  to  Liver- 
pool was  not  impeached  by  a  tittle  of  evidence  bearing  upon  the  question ; 


*363]  COLUMBIA,    DECEMBER,    1834.  270 

and  the  decree  therefore  operates  as  a  surprise  upon  the  defendant,  who 
has  been  precluded  from  producing  evidence,  whicli  it  was  in  his  ])ower  to 
obtain  in  Charleston  establishing  the  propriety  of  the  sliipnient  at  the- 
time  when  it  was  made,  and  showing,  in  fact,  that  not  to  have  made  it,  would, 
under  the  circumstances,  have  argued  a  gross  disregard  of  the  interests 
in  his  charge.  And  it  is  submitted  that,  in  the  absence  of  evidence  im- 
peaching the  propriety  of  the  shipment,  the  Chancellor,  if  he  entertained 
any  doubt  of  it,  should  have  done  no  more  than  to  direct  an  inquiry  by 
the  Commissioner. 

5,  That  even  if  the  liability  of  the  defendant  were  conceded,  the  extent 
of  it  should  not  have  been  settled  by  loose,  uncertain  and  speculative  evi- 
dence, as  to  the  weight  of  the  cotton,  and  the  prices  which  might  have 
been  obtained  for  it  in  Charleston,  when  it  was  in  the  power  of  tlie  plain- 
tiff to  have  produced  exact  proof  from  the  scale  books  on  the  first  point, 
and  the  prices  current  of  the  period,  and  the  testimony  of  factors  in 
Charleston,  as  to  the  second.  And  it  is  submitted  that,  on  this  question 
also,  an  inquiry  *by  the  Commissioner  should  have  been  directed,  r^op  j 
if  the  exception  were  not  itself  overruled.  '- 

Colcock,  for  the  appellant. 

Patterson,  contra. 

Johnson,  J.  The  rule  laid  down  by  the  Court  in  Taveau  v.  Ball,  1 
M'C.  Ch.  Rep.  464,  is,  that  executors,  administrators,  and  others,  acting 
in  a  fiduciary  character,  are  bound  to  manage  the  funds  committed  to 
their  care,  with  the  same  care  and  diligence  that  a  prudent  and  cautious 
man  would  bestow  on  his  own  concerns  ;  and  I  am  not  aware  that  the 
correctness  of  this  rule  has  ever  been  called  in  question.  In  all  cases, 
therefore,  where  a  loss  arises  in  the  management  of  funds  by  an  executor, 
or  other  person  acting  as  a  trustee,  the  question  arises  whether  the  loss 
happened  from  casualties  against  which  no  one  can  be  expected  always 
to  guard,  or  from  his  want  of  care  and  circumspection  ;  and  is  an  unmixed 
question  of  fact  which  cannot  be  resolved  by  any  rule,  but  must  depend 
on  the  particular  circumstances  of  each  case. 

In  the  management  of  an  estate  by  an  executor  or  administrator,  it 
would  be  generally  safe  to  sell  the  produce  of  the  estate  in  the  market 
usually  resorted  to  in  the  country  where  it  is  situated,  because  it  would 
furnish  evidence  of  ordinary  care  and  circumspection,  but  as  an  arbitrary 
rule,  it  never  could  be  tolerated.  The  town  of  Columbia  is,  for  example, 
the  common  market  of  the  districts  lying  north  of  it ;  and  would  an  ad- 
ministrator, managing  an  estate  in  York,  be  excused  for  selling  his  crop 
there,  when  it  was  notorious,  or  even  probable,  that  it  would  command  a 
much  higher  price  in  Charleston  ?  Certainly  not :  for  a  jjrudent  and 
cautious  man  would  send  it  on  to  Charleston  to  obtain  the  better  price. 
And  precisely  so  herf^  ;  if  the  defendant  acted  in  good  faith  and  with 
the  reasonable  expectation  of  making  a  greater  profit  for  the  estate  which 
he  managed,  by  sending  on  the  cotton  to  Liverpool,  instead  of  selling  it 
in  Charleston,  he  has  done  all  which  the  law  requires  of  him.  ,  Produce 
is  bought  in  Columbia  to  be  sold  in  Charleston,  and  in  Charleston  to  be 
sold  in  Liverpool,  on  a  profit ;  and  I  cannot  consent  that  a  sale  in  the 


280  SOUTH    CAROLINA   EQUITY    REPORTS.  [*364: 

market,  where  the  highest  price  is  expected  to  be  obtained,  should  be  con- 
sidered as  negligence  by  a  settled  rule  of  law. 

^„„.-,  The  report  of  the  Commissioner  as  to  the  facts  out  of  which  *thi3 
-J  question  arises,  has  not  been  brought  up;  and  the  Court  is  conse- 
quently ignorant  of  the  precise  state  of  the  markets  in  Charleston  and 
Liverpool,  at  the  time  the  cotton  was  sent  to  market.  There  may  have 
been  something  which  would  have  rendered  the  shipment  imprudent,  but 
the  Chancellor  has  founded  his  judgment  on  the  ground  that  the  defend- 
ant was  bound  to  sell  in  the  markets  of  the  country ;  and  as  we  cannot 
concur  in  this,  the  case  must  go  back  to  the  Commissioner  to  ascertain 
and  report  the  facts. 

It  is  therefore  ordered,  that  the  case  be  referred  back  to  the  Commis- 
sioner, to  ascertain  and  report  to  the  Circuit  Court,  the  facts  connected 
with  the  question  before  the  Court. 

O'Neall  and  Harper,  Js.,  concurred. 


Joel  Ridgell,  and  Others,  v.  Philip  Bethea. 

The  Act  of  1824,  authorizing  Ordinaries  to  make  partition  of  real  estate  not  exceed- 
ing in  value  one  thousand  dollars,  applies  only  where  the  e7itire  estate,  in  how 
many  districts  soever  situated,  does  not  exceed  that  amount.  [*?66] 

If  tlie  Ordinary  should  be  deceived  as  to  the  value,  the  title  of  a  bona  fide  purchaser 
will  not  be  affected;  but  the  facts  should  appear  in  his  proceedings,  and  if  it  thus 
appears  that  he  did  not  inquire  as  to  the  value  of  the  entire  estate,  or  that  it 
exceeded  one  thousand  dollars,  his  proceedings  are  void.  [*3G6] 

Before  Chancellor  Johnston,  at  Marion,  February,  1835. 

Bill  for  account  and  partition.  The  only  question  made  in  the  case 
was  in  relation  to  the  real  estate  of  the  intestate,  under  the  following  facts, 
reported  by  the  Commissioner :  "  That  Joel  Ridgell,  the  intestate,  lived 
and  died  in  Marion  district,  and  Philip  Bethea  administered  on  his  estate 
there.  He  had,  at  his  death,  two  tracts  of  land  in  Marion,  and  one  in 
Marlborough  Application  was  made  to  the  Court  of  Ordinary,  in 
Marion  District,  for  partition  of  the  two  tracts  there.  They  could  not  be 
divided,  and  a  sale  was  recommended  and  made — one  tract  to  Philip  Be- 
thea for  $512  ;  the  other  to  Charles  Miles  for  $288  50.  The  evidence  of 
the  value  of  these  two  tracts,  adduced  to  give  the  Ordinary  jurisdiction, 
did  not  fix  any  definite  value,  but  merely  stated  that  they  were  not  worth 
$1000.  Philip  Bethea  afterwards  went  to  Marlborough,  and  adminis- 
tered there.  Application  was  made  to  the  Court  of  Ordinary  for  parti- 
tion of  the  land.  The  witnesses,  as  to  its  value,  in  order  to  give  the  Or- 
dinary jurisdiction,  testified  that  it  was  not  worth  exceeding  $300.  It 
could  not  be  divided,  and  was  regularly  sold  by  order  of  the  Ordinary  for 
Marlborough,  and  bought  by  Philip  Bethea  for  $100."  The  Commis- 
sioner recommends  that  the  sale  be  confirmed. 
:^ogg-]       *The  plaintiff  excepted  to  the  Commissioner's  report : 

-"  1.  Because  the  sale  of  the  tract  of  land  in  Marlborough  district 
is  null  and  void,  having  been  made  by  the  Ordinary  of  that  district, 
who  had  no  jurisdiction. 


*366]  COLUMBIA,  DECEMBER,  1835.  281 

2.   That  the  Commissioner  should  have  reported  the  sale  void,  and 
recommended  a  re-sale. 

JSrvin,  for  the  appellants. 

Graham,  contra. 

n.vRPER,  J.  It  is  a  matter  not  without  difficulty  to  give  a  proper  con- 
struction to  the  Act  of  Assembly  of  1824,  authorizing  the  Ordinary  to 
make  sale  or  division  of  the  estate,  provided  the  value  of  such  real  estate, 
to  be  ascertained  by  the  Judges  of  said  Courts  of  Ordinary  resi)cctively, 
upon  the  oath  or  oaths  of  a  credible  witness  or  witnesses,  shall  not  exceed 
$1000.  We  are  satisfied,  however,  that  the  Act  was  only  intended  to 
apply  where  the  entire  value  of  the  estate,  in  how  many  districts  soever 
situated,  does  not  exceed  .$1000.  Yet,  both  from  the  Act  of  1799,  (2 
Faust,  315,)  establishing  Courts  of  Ordinary  "  in  each  district,^^  and  from 
the  general  law,  we  are  also  satisfied  that  no  Ordinary  can  order  the  divi- 
sion or  sale  of  lands  out  of  his  own  district.  It  results,  that  when  apjili- 
cation  is  made  to  the  Ordinary  for  this  purpose,  it  is  his  duty  to  inquire 
the  value  of  the  entire  real  estate  of  the  deceased,  wheresoever  situated 
in  the  State,  and  not  merely  in  his  own  district,  and  if  it  shall  be  found 
not  to  exceed  $1000,  to  order  the  sale  of  that  portion  which  lies  in  his 
own  district.  This  construction  is  not  without  difQculty,  but  we  cannot 
discover  any  other  practical  one. 

If  the  Ordinary,  however,  should  be  deceived  by  the  evidence  brought 
before  him,  either  through  the  fraud  or  mistake  of  the  parties,  or  the  igno- 
rance or  omission  of  witnesses,  certainly  the  title  of  a  bona  fide  purchaser 
ought  not  to  be  affected.  The  Ordinary  is  a  judge  of  a  special  jurisdic- 
tion, and  the  circumstances  which  give  him  jurisdiction  should  appear  on 
the  face  of  his  proceedings.  If  it  tlius  appear  that  he  did  inquire  respect- 
ing the  value  of  the  entire  estate,  and  that  upon  clear  examination  it  was 
found  not  to  exceed  $1000,  then  his  judgment  is  conclusive,  unless  under 
particular  circumstances  of  fraud  ;  nor  can  parties  afterwards  be  permitted 
to  show  that  the  whole  of  the  estate  was  not  taken  into  the  esti-  r*3g'T 
mate,  or  that  its  value  exceeded  $1000.  He  is  the  judge  on  both  *- 
points,  and  his  judgment  is  conclusive.  The  latter  point  has  been  already 
adjudged  by  this  Court,*  and  the  reasoning  extends  to  the  former. 

But  if  it  should  appear  from  the  face  of  the  Ordinary's  proceedings, 
that  he  did  not  inquire  respecting  the  value  of  the  entire  estate,  or  that 
the  value  exceeded  $1000,  then  he  is  without  jurisdiction,  and  his  ])roceed- 
ings  void.  If,  in  such  case,  a  purchaser  be  deceived,  it  is  by  his  own 
laches,  for  he  might  have  inspected  the  proceedings. 

In  the  present  case,  the  proceedings  of  the  Ordinary  in  relation  to  tlie 
land  in  question  are  not  before  us,  and  the  cause  is  remanded  that  the 
matter  may  be  inquired  into  and  ascertained  according  to  the  views 
herein  expressed. 

Johnson,  J.,  and  O'Neall,  J.,  concurred. 


*  Chambers  vs.  Watson,  1  Bail.  511. 


282  SOUTH    CAROLINA    EQUITY    REPORTS.  [*367 


Jacob  R.  Harley,  and  Elizabeth,  his  Wife,  vs.  Charles  De  Witt, 

and  Others. 

The  ten  pound  rule  in  regard  to  the  liire  of  negroes  is  not  an  arbitrary  rule  of  value, 
but  may  be  varied  with  the  circumstances  of  the  case.  It  imports  no  more  than 
that  tlie  trustee  of  a  planting  interest  who  renders  no  accounts  shall  not  be 
charged  less  than  ten  pounds  per  hand,  and  does  not  apply  where  greater  profits 
were  or  might  ordinarily  have  been  made.  [*3G9] 

Tlie  rule  does  not  apply  where  the  hands  were  engaged  in  other  and  more  profitable 
pursuits  than  planting.  [*370] 

Guudian  who  is  co-tenant  with  his  ward  liable  for  his  rent,  although  he  may  not 
have  used  beyond  his  own  interest.  He  should  have  made  her  land  productive. 
[*37U] 

Before  Chancellor  De  Saussure,  at  Barnwell,  February,  1835. 

The  bill  alleges  that  George  Bruton,  the  father  of  the  plaintiff,  Eliza- 
beth, died  intestate,  possessed  of  a  valuable  plantation  and  several  slaves 
and  other  property,  leaving  a  widow,  and  this  plaintiff,  his  only  heirs  at 
law  ;  that  some  time  after,  the  defendant,  De  Witt,  married  the  widow, 
and  administered  on  the  estate ;  and  was  appointed  the  guardian-in-chief 
of  the  plaintiff  Elizabeth,  then  an  infant.  That  he  took  possession  of  the 
plantation  and  slaves,  and  all  the  other  property;  and  cultivated  the  land, 
and  worked  the  slaves  and  hired  them  out;  sold  part  of  the  property, 
including  some  of  the  slaves,  and  appropriated  the  profits  of  the  planta- 
tion and  the  labor  and  hire  of  the  slaves,  and  the  sales,  to  his  own  benefit, 
without  rendering  satisfactory  returns,  either  as  administrator  or  guardian. 
That  the  wife  of  the  defendant,  De  Witt,  and  plaintiff's  mother,  has  lately 
died,  and  the  plaintiffs  are  entitled  to  a  distributive  share  of  her  estate. 
The  bill  prays  for  an  account  *from  De  Witt,  as  administrator 
and  guardian,  and  for  partition  of  his  wife's  estate. 

No  answer  was  filed,  and  the  matters  of  account  were  referred  to  the 
Commissioner. 

On  the  reference,  Richard  Road,  who  had  been  for  seven  years  an 
overseer  for  De  Witt,  testified  as  to  the  rent  of  the  land  and  negro  hire, 
and  that  De  Witt  was  getting  out  timber  for  sale  nearly  all  the  time 
he  was  with  him.  He  planted  cotton  two  years  and  worked  all  the  men 
hands  two  seasons  on  the  railroad.  Two  other  witnesses  were  examined 
as  to  the  value  of  the  hire  of  the  negroes  and  rent  of  the  land.  Their 
evidence  is  not  important. 

Exceptions  were  filed  to  the  Commissioner's  report  by  both  parties  ; 
but  it  is  only  necessary  to  notice  those  which  were  made  the  subject  of 
appeal,  viz  :  on  the  part  of  the  defendant : 

1.  That  the  Commissioner  has  allowed  more  than  £10  per  annum  for 
the  hire  of  the  negroes ;  whereas  defendant  submits  that  the  plaintiffs  are 
only  entitled  to  £10  for  full,  and  £5  for  half  hands. 

2.  That  the  Commissioner  has  charged  the  defendant  with  rent  of  the 
plantation  ;  whereas  he  submits,  that  not  having  cultivated  beyond  his 
interest,  he  was  not  chargeable  with  rent. 

The  Chancellor  sustained  these  exceptions ;  and  the  plaintiffs  appeal 
from  his  decision  in  these  particulars. 

_    Patterson,  for  the  appellants,  insisted  that  the  £10  rule,  as  laid  down 
in  Lyles  u.  Lyles,  1  Hill's  Ch.  76,  and  other  cases,  was  inapplicable  to 


*368] 


*368] 


COLUMBIA,    DECEMBER,    1835.  253 


this  case.  Tliat  the  rule  was  only  intended  to  furnish  a  standard  ])y 
which  trustees  should  account,  where  regular  accounts  were  not  reported, 
and  in  the  absence  of  all  evidence  going  to  fix  a  higher  rate  of  value. 
That  the  actual  value  of  negro  hire  was  established  in  tliis  case  with 
sufficient  certainty,  by  competent  and  credible  witnesses ;  and  their 
opinion,  especially  as  the  negroes  were  not  employed  in  ordinary  culture, 
should  be  taken  in  preference  to  an  arbitrary  rule  of  value,  not  applicable 
to  the  circumstances  of  the  case.  That  the  defendant  was  bound  to  have 
kept  regular  accounts  of  his  receipts  and  expenditures,  and  failing  in  liis 
duty  in  this  respect,  to  diminish  his  responsibility  by  this  arbitrary  rule, 
would  be  to  permit  him  to  take  advantage  of  his  own  fraud,  or  negligence 
equivalent  to  fraud.  And  as  guardian  and  *trustee,  he  was  re-  r;icq<:>q 
sponsible  for  the  management  of  the  plantation,  and  consequently  L 
liable  for  rent.  Cited,  Frazier  v.  Vaux,  1  Hill's  Ch.  Rep.  2U6  ;  Hoven- 
den  on  Frauds,  421  ;  13  Yes.  53. 

Bellinger,  contra.  As  to  the  £10  rule — Cited,  Lyles  v.  Lyles,  1  Hill's 
Ch.  Rep.  86;  Frazier  u  Vaux,  lb.  206;  2  Eq.  Rep.  499;  4  Eq.  Rep. 
270.  As  to  the  rent — Volentiue  v.  Johnson,  1  Hill's  Ch.  Rep.  49; 
Lyles  V.  Lyles,  lb.  86. 

Johnson,  J.  The  questions  arising  out  of  the  grounds  of  this  motion, 
are : — 

1.  As  to  the  rule  by  which  the  value  of  slave  hire  is  to  be  ascertained. 

2.  Whether  the  defendant  is  bound  to  account  to  plaintiff  for  the  rent 
of  the  wife's  land. 

In  the  case  of  Lyles  v.  Lyles,  1  Hill's  Ch.  Rep.  87,  and  in  some  other 
cases  there  referred  to,  the  Court  adopted  the  old  rule  of  allowing  £10 
for  the  hire  of  full  task  hands  as  the  standard  of  the  value  of  slave  hire, 
not  as  an  arbitrary  rule  of  value,  but  the  result  of  calculations  founded 
on  observation  and  experience,  and  of  coure  lial)le  to  be  varied  by  cir- 
cumstances ;  and  notwithstanding  the  care  that  has  been  taken,  it  still 
appears  that  the  principle  of  the  rule  is  not  universally  understood. 
Where  an  estate  in  the  hands  of  an  administrator  consists  of  lands  and 
negroes,  it  is  obviously  the  interest  of  those  entitled  to  it,  that  the  negroes 
should  be  kept  together  and  employed  on  the  lands,  although  the  animal 
income  might  fall  short  of  what  the  slaves  and  lands  might  rent  and  hire 
for;  the  lands  would  probably  be  less  deteriorated  in  value,  than  in  the 
hands  of  a  tenant  who  would  feel  no  other  interest  in  it  than  for  the  time 
which  he  occupied  it ;  generally  the  slaves  would  be  better  jn'ovided  for, 
and  more  attention  bestowed  on  the  old  and  the  young,  than  in  the  liands 
of  strangers,  who  would  feel  no  sympathy  for  tiiem;  and  the  object  of 
adopting  the  £10  rule,  so  far  from  being  intended  as  a  favor  to  the 
administrator,  was  to  charge  him  in  the  absence  of  regular  accounts, 
with  the  full  value  of  what  he  might  reasonably  be  sup[)osed  to  have 
made  with  ordinary  care  and  industry — and  that  will  appear  by  referring 
to  the  note  annexed  to  the  case  of  Lyles  v.  Lyles.  Cotton  estimated  at 
twelve  and-a-half  cents  per  pound,  is  the  basis  of  that  calculation,  and  in 
Myers  v.  Myers,  the  evidence  established  that  price,  as  the  average  of  a 
*series  of  years.  If,  therefore,  the  price  of  cotton  should  be  greater  (-jtco-T.^ 
for  one  or  more  years,  or  the  average  price  through  a  succession  ^ 
of  years  should  be  higljcr,  the  rule  must  be  necessarily  varied  to  suit  the 


284  SOUTH   CAROLINA   EQUITY   REPORTS.  [*370 

particular  case,  and  a  corresponding  increase  of  hire  allowed.  Or,  if 
from  adventitions  circumstances,  such  as  unusually  productive  lands,  favor- 
able seasons,  and  the  superiority  of  the  hands,  greater  crops  than  the 
general  average  were  actually,  or  might,  with  ordinary  industry,  have 
been  made,  a  corresponding  increase  of  hire  of  slaves  and  rents  of  land 
ought  to  be  allowed.  The  rule  imports  no  more  than  that  the  adminis- 
trator shall  not  be  charged  with  less  than  £10  per  hand,  where  no 
accounts  are  rendered,  and  certainly  does  not  protect  him  where  greater 
profits  were  or  might  have  been  made  with  ordinary  industry.  Let  us 
suppose,  for  example,  that  the  average  price  of  cotton  was  twenty  cents 
per  pound,  and  that  two  and  a-half  bags  of  300  lbs.  each  was  the  aver- 
age crop  for  a  single  hand,  that  would  amount  to  one  hundred  and  fifty 
dollars;  and  if  we  deduct  from  this  $51  54  the  estimated  expenses  on 
each  hand,  adopted  in  the  note  in  Lyles  v.  Lyles,  and  which  would  not 
be  materially  varied  by  the  increased  price  of  cotton,  it  would  'leave  a 
balance  of  $98  4G  to  be  credited  to  the  hire  of  the  slave,  for  which  the 
administrator  would  be  bound  to  account.  The  rule  was  never  intended 
to  operate  imperatively,  but  to  supply  a  principle  by  which  the  extent  of 
the  liability  of  persons  standing  in  this  situation  was  to  be  ascertained. 

In  this  case,  however,  the  slaves  were  employed  but  a  small  portion  of 
their  time  in  planting,  but  for  the  most  part  in  preparing  timber  for 
market,  and  working  on  the  railroad;  and  the  necessary  inference  is,  that 
these  were  more  profitable  pursuits  ;  consequently  a  rule  based  on  an 
estimate  of  cotton  planting  cannot  apply,  and  for  the  reasons  before 
given,  the  usual  prices  paid  for  hire,  would  be  an  unsafe  rule.  The 
nett  income  which  might  be  reasonably  calculated  on  from  these  employ- 
ments after  deducting  the  probable  expenditures,  furnishes  therefore  the 
only  practical  and  safe  rule,  and  the  Commissioner  will  adopt  it  in  the 
reference  which  will  be  ordered. 

As  to  the  land  rents. — The  Chancellor  is  certainly  correct  in  laying 
down  the  rule,  that  if  one  of  several  co-tenants  cultivates  or  uses  no  more 
than  his  own  share  of  the  lands,  he  is  not  liable  to  his  co-tenants  for 
rent ;  but  with  great  deference,  it  has  no  application  to  the  case  in  hand. 
*3T11  ^^  ^^  *''"^'  ^^^®  parties  were  co-tenants,  but  the  *defendant  stood 
also  in  the  relation  of  guardian  to  the  plaintiff,  Mrs.  Harley,  and 
in  that  character  he  was  bound  to  make  her  lands  productive  if  he  could, 
and  is  liable,  if  he  has  neglected  to  do  so.  He  must  therefore  account 
for  rents. 

_  It  is  therefore  ordered,  that  the  case  be  referred  back  to  the  Commis- 
sioner to  examine  and  report  to  the  Circuit  Court  on  the  matters  before 
noticed,  according  to  the  principles  of  this  decree. 

0'!vEALL,  J.,  and  Harper,  J.,  concurred. 


Peter  Chewning  v.  Louisa  Singleton. 

A  party  who  has  lost  a  note  payable  to  bearer  although  past  clue,  may  come  in 
equity  for  relief.  The  ground  of  jurisdiction  is  not  only  that  he  may  give  indem- 
nity to  defendant,  but  that  he  must  swear  to  the  loss.  [*373] 

At  Sumter,  February,  1835. 

This  bill  was  filed  against  the  defendant,  as  executrix  and  sole  legatee 


*3T1]  COLUMBIA,    DECEMBER,    1835.  285 

of  Mrs.  Anne  Chewninj^,  alleging  that  the  testatrix,  in  her  life  time,  for 
a  valnable  consideration,  gave  the  plaintiff  her  promissory  note  for  $050, 
payable  to  him  or  bearer,  at  ten  days  after  date,  and  dated  in  September, 
1832.  That  tlie  note  was  seen  ))y  divers  persons  in  his  possession,  and 
that  in  October,  1832,  (after  the  testator's  death,)  he  lost  his  pocket  book 
and  in  it  the  note.  That  he  has  (through  her  agent)  given  tlie  defendant 
notice  of  the  note  and  its  loss,  and  demanded  payment,  which  has  been 
refused.  The  bill  prays  that  defendant  may  answer  its  allegations,  and 
that  the  payment  of  the  amount  of  the  note  with  interest  may  be  decreed, 
on  such  terms  of  indemnity  to  the  defendant  against  any  future  liability, 
as  the  Court  may  think  proper  to  impose — and  for  general  relief. 
The  bill  was  sworn  to  15th  January,  1834,  and  filed  the  same  day.  _ 
The  answer  of  the  defendant  denies  any  knowledge  of  her  testatrix's 
indebtedness  to  the  plaintiff,  or  of  the  note,  or  of  any  transaction  by 
which  such  a  debt  could  have  been  created.  That  shortly  before  the 
testatrix's  death,  she  heard  her  say  she  owed  the  plaintiff  nothing;  and 
the  defendant  does  not  believe  that  any  such  note  ever  existed.  She  sub- 
mits that  the  plaintiff  has  an  adequate  remedy,  if  any,  at  law, 

^Johnston,  Chancellor.  This  case  was  heard  upon  bill  and  r*3>j2 
answer.  A  motion  was  made  to  dismiss  the  bill  for  want  of  equity. 
The  motion  is  granted  and  the  bill  dismissed  with  costs.  The  note 
alleged  to  be  lost,  and  which  the  bill  seeks  to  set  up  was,  by  the  plain- 
tiff's own  showing,  past  due  when  it  was  lost ;  and  thus  the  necessity  for 
indemnity  no  longer  exists.  The  bill  is  not  a  bill  for  discovery  ;  and  if  it 
was,  all  evidence  on  the  plaintiff's  part  is  excluded,  inasmuch  as  the 
answer  gives  no  discovery,  but  denies  that  such  a  note  ever  existed  :  and 
the  plaintiff  has  adequate  remedy  at  law. 

The  plaintiff  appealed,  and  now  moved  to  reverse  the  decree  on  the 
following  grounds  : 

1.  That  the  Chancellor  erred  in  supposing  that  the  necessity  for  in- 
demnity is  the  ground  of  equity  jurisdiction  ;  whereas  it  is  submitted  that 
the  indemnity  is  the  condition  which  the  Court  annexes ;  and  that  no 
necessity  exists  to  require  the  plaintiff  to  give  it,  can  affect  his  claim  to 
relief 

2.  That  there  is  no  adequate  relief  at  law,  and  Chancery  will  afford  it. 

Hoses,  for  the  motion.  The  right  of  the  Court  to  order  indemnity 
does  not  confer  jurisdiction,  for  there  are  cases  of  lost  bonds  where  in- 
demnity has  been  ordered  at  law.  Jeremy's  Eq.  Jar.  261.  That  the 
note  was  past  due  cannot  affect  the  right  of  relief;  for  if  one  finding  the 
note  were  to  sue  on  it,  before  the  defendant  could  get  in  the  defence,  she 
would  have  to  prove  that  it  was  lost  or  transferred  after  due.  M'Cas- 
kill  V.  Ballard,  Col.  May,  1832.  In  fact,  that  the  note  is  due,  should  be 
a  strong  reason  for  the  Court  to  grant  relief 

The  books  are  full  of  cases  affording  relief  on  lost  bonds  and  notes,  and 
that  too,  after  due.  Walmsley  v.  Child,  1  Ves.  341  ;  Ex  parte  Greenway, 
6  Ves.  812-13;  M'Cartney  v.  Graham,  2  Sim.  285;  see  also  Tarleton 
&  Davis  V.  Benbow,  2  Bail.  423.  The  case  of  Mossop  v.  Eadon,  16 
Ves.  430,  was  relied  on  as  denying  the  right  to  relief.  That  case  has 
since  been  overruled  bv  Hansard  v.  Robinson,  1  Barn.  &  Cress.  90,  and 


286  SOUTH   CAROLINA   EQUITY   REPORTS.  [*372 

M'Cartney  v.  Graham,  2  Sim.  285.     The  plaintiff  cannot  have  relief  at 
law,  because  he  cannot  prove  the  loss  of  the  note. 

W.  Mayrant,  contra.  A  party  may  recover,  at  law,  on  a  lost  note,  on 
5^oNq-|  proof  of  its  existence  and  loss  ;  and  but  slight  evidence  *of  the  loss 
^'  -I  will  be  required.  Chitty  on  Bills,  170-1-2.  Can  he  recover  in 
equity  by  his  own  oath  of  the  loss  ?  In  this  case  the  alleged  maker  is 
dead  ;  her  executrix  denies  all  knowledge  of  the  note,  and  avows  her  belief 
that  it  never  existed.  There  is  no  proof  offered.  Will  the  Court  sustain 
such  a  claim  against  the  estate  of  a  deceased  person,  with  no  other  proof 
to  support  it  than  the  oath  of  the  party  claiming  ? 

Harper,  J.  My  views  of  this  case  may  be  gathered  from  what  has 
been  said  by  me  in  the  case  of  Davis  &  Tarleton  v.  Benbow,  2  Bail.  427. 
I  have  again  looked  into  the  authorities  on  the  subject,  and  find  no  reason 
to  change  any  of  the  views  there  expressed.  It  is  not  questioned  but 
that  in  some  cases  a  party  may  come  into  equity  to  be  relieved,  when  a 
bill  or  note  has  been  lost  or  destroyed.  The  cases  of  Walmsley  v.  Child, 
1  Yes.  341 ;  Ex  parte  Greenway,  6  Ves.  812,  and  many  others,  are  suffi- 
cient to  establish  this.  The  Chancellor  seems  to  have  decided  chiefly  on 
the  authority  of  Mossop  v.  Eadon,  16  Ves.  430.  The  Master  of  the 
Rolls,  in  that  case,  went  upon  the  ground  that  the  only  purpose  of  coming 
into  equity  is  to  offer  an  indemnity,  and  as  I  gather  from  the  argument 
in  the  case,  it  appeared  that  the  note  was  not  payable  to  order,  so  that 
it  could  not  have  been  negotiated,  and  as  no  action  could  be  maintained 
upon  it  by  any  one  into  whose  hands  it  might  come,  indemnity  was  un- 
necessary. He  therefore  dismissed  the  bill.  So  the  Chancellor  supposes 
that  as  the  note  in  this  case,  as  appears  from  the  plaintiff's  own  state- 
ment, was  lost  after  it  was  due,  there  was  no  need  of  indemnity,  But 
with  deference,  this  seems  to  me  to  be  founded  in  misconception.  The 
plaintiff  does  indeed  state  that  the  note  was  lost  after  due;  but  who  shall 
assure  the  defendant  of  the  truth  of  that  statement?  Plaintiff  states  that 
he  has  no  proof  of  the  loss. .  It  is  for  defendant's  benefit  that  the  party  is 
required  to  come  into  equity.  If  an  action  had  been  brought  at  law,  she 
might  well  have  said  to  the  plaintiff,  how  can  you  assure  me  that  you 
yourself,  have  not  negotiated  the  note  before  it  became  due,  and  that  it 
may  not  now  be  in  the  hands  of  a  bona  fide  holder  ?  The  right  to  indem- 
nity would  have  been  apparent. 

But  the  case  of  Mossop  v.  Eadon,  seems  to  have  been  overruled  by 
subsequent  decisions.  In  the  case  of  Hansard  v.  Robinson,  7  Barn.  & 
*3741  ^^'^^^-  90'  t^^®  ^'^^^  ^^^s  ^ost  after  due.  Lord  Tenderden,  *s|)eak- 
-^  ing  of  the  defendant,  says  :  "  But  how  is  be  to  be  assured  of  the 
loss  or  destruction  of  the  bill  ?  Is  he  to  rely  on  the  assertion  of  the 
holder,  or  to  defend  the  action  at  the  peril  of  costs  ?  And  if  the  bill 
should  afterwards  appear  and  a  suit  be  brought  against  him  by  another, 
a  fact  not  absolutely  improbable  iu  the  case  of  a  lost  bill,  is  he  to  seek 
for  the  witnesses  to  prove  the  loss  and  to  prove  that  the  new  plaintiff 
obtained  it  after  it  became  due  ?  Has  the  holder  the  right,  by  his  own 
negligence  or  misfortune,  to  cast  the  burden  upon  the  acceptor,  even  for 
not  discharging  the  bill  on  the  day  it  became  due  ?  We  think  that  the 
custom  of  merchants  does  not  authorize  us  to  say  that  this  is  the  law.     Is 


*374]  COLUMBIA,   DECEMBER,    1835.  287 

the  holder,  then, -withont  remedy?  Not  wholly  so.  lie  may  tender 
sufficient  indemnity,  and  if  it  be  refused  he  may  enforce  payment  theie- 
upon  in  a  Court  of  Equity."  In  M'Cartney  v.  Graham,  2  Simons,  285,, 
the  bill  had  been  indorsed  specially  to  the  plaintiff,  so  that  no  other 
holder  could  maintain  a  suit  upon  it,  and  it  was  argued,  on  the  authority 
of  Mossop  and  Eadon,  that  as  no  indemnity  was  needed,  the  remedy  was 
at  law.  But  the  Court  said  that  Mossop  v.  Eadon  had  been  overruled 
by  Hansard  and  Robinson. 

Sir  William  Grant,  in  Mossop  v.  Eadon,  seems  to  have  overlooked  a 
ground  of  equity  on  which  the  greatest  stress  is  laid  by  Lord  Eldon — a 
still  higher  authority.  This  is  the  necessity  imposed  on  the  party  coming 
into  equity  to  make  affidavit  of  the  loss.  In  Ex  parte  Greenway,  speak- 
ing of  the  decision  of  the  Court  of  law,  in  Read  v.  Brookman,  3  T.  R. 
151,  that  in  case  of  a  lost  deed,  profert  may  be  dispensed  with,  he  says  ; 
"It  is  questionable  whether  sufficient  attention  was  paid  to  the  considera- 
tion, that  in  equity  the  conscience  is  ransacked,  and  the  party  alleging 
that  the  instrument  is  lost,  must  make  an  affidavit  that  it  is  not  in  his 
possession  or  power."  And  in  Bromley  v.  Holland,  6  Yes.  20,  "The 
protection  this  Court  gives  in  that  case,  is  most  essential  to  the  interest 
of  justice.  Here  the  party  pledges  his  conscience  by  his  oath  that  the 
instrument  is  lost."  East  India  Company  v.  Boddam,  9  Ves.  464,  was 
a  case  of  a  lost  bond.  Lord  Eldou  says,  that  "  if  the  bond  was  by 
a  single  obligee,  the  party  sued  in  this  Court,  stating  in  his  bill  that 
the  bond  was  lost ;  and  accompanying  his  bill  with  an  affidavit  that  it  was 
lost ;  not  as  evidence  of  the  loss,  but  as  a  security  for  the  pro^yriefy  of 
jurisdiction.^'  Instances  are  put  in  the  cases  of  frauds  which  might  be 
practised  by  the  wilful  suppression*  or  destruction  of  the  instru-  r>|cq7K 
ment,  similar  to  what  is  suggested  in  Davis  &  Tarleton  v.  Ben-  '- 
bow.  It  may  be  observed  that  this  applies  still  more  strongly  in  the  case 
of  a  lost  bill  or  note  than  in  that  of  a  bond  or  deed,  as,  in  addition  to  the 
danger  of  fraudulent  suppression  or  destruction,  there  is  additional  danger 
of  the  instrument's  having  been  fraudulently  negotiated.  There  is  no 
doubt,  however,  but  that  it  was  intended  to  apply  in  all  similar  cases. 
Such  is  the  view  taken  by  Fonblanque,  in  his  notes  to  the  Treatise  of 
Equity,  (1  Fonb.  15,  16,  It,  n.  f.)  and  by  Lord  Redesdale,  (Mitf  PI. 
105-6.) 

It  is  ordered  and  decreed  that  the  Chancellor's  decree  be  reversed,  and 
the  cause  remanded  for  hearing. 

Johnson,  J.,  and  O'Neall,  J.,  concurred. 


S.  C.  MuLDROW,  and  John  B.  Bruce,  Trustees,  v.  Isaiah  DuBose,  and 

Others. 

A  bill  by  trustees  to  mai'shal  assets  and  callina;  in  creditors,  after  decree  made, 
directing  money  to  be  paid  in  and  creditor's  claims  estaljllslied,  will  not  be  dis- 
missed at  the  instance  of  one  of  the  plaintiffs,  his  co-plaintiff  and  the  creditors 
objecting.  [*377] 

Plaintiffs  accepted  a  trust  from  B.  K.  Benton,  as  folfows,  viz :  that 


288  SOUTH  CAROLINA   EQUITY   EEPORTS.  [*3T5 

they  would  bold  and  manage  certain  property  conveyed  to  them  by 
Benton,  for  the  benefit  of  Benton's  creditors,  his  wife  and  children.  The 
creditors  pressing  on  them  for  payment,  some  of  them  having  judgments, 
Muldrow  &  Bruce,  (the  former  being  the  principal  manager  and  actor  in 
the  matters,)  filed  this  bill,  calling  upon  the  creditors  to  come  in,  estab- 
lish their  demands,  and  receive  t/ieir  jDot^tions,  and  praying  an  injunc- 
tion against  the  creditors,  as  to  other  ^proceedings.  The  injunction  was 
granted,  and  other  creditors  came  in.  At  February  Term,  1834,  an 
order  was  made  by  consent  against  Muldrow  and  Isaiah  DuBose,  (who 
it  appeared  had  all  the  funds  then  remaining — the  property  conveyed, 
having  been  sold  under  the  deed,)  that  they  should  pay  six  hundred 
dollars  each  to  the  Commissioner,  by  the  first  of  October,  then  next,  to  be 
applied  to  the  claims  of  the  creditors.  In  the  Spring  of  1834,  Muldrow 
gave  to  a  creditor  in  Court,  his  notes  for  one  thousand  dollars,  which 
were  received  by  said  creditor  as  so  much  towards  the  payment 'of  his 
claim  already  established  before  the  Commissioner  to  a  greater  amount; 
5^q'-/>-]  which,  with  some  smaller  amount  paid  by  *Muldrow,  to  one  or 

*  -'  two  of  the  other  creditors,  amounted  to  as  much  as  he  admitted  to 
be  due  by  him  to  the  trust  fund.  A  further  amount  of  from  nine  hundred 
to  one  thousand  dollars  was  claimed,  after  giving  the  notes  above  alluded 
to,  and  before  the  1st  October,  1834,  Muldrow  removed  from  this  State, 
to  the  West,  and  wrote  word  to  have  his  bill  dismissed.  The  creditor  to 
whom  the  notes  were  given  was  the  largest  but  not  the  only  creditor,  and 
the  amount  due  by  Muldrow,  was  not  the  only  available  fund.  (DuBose 
owed  considerably.)  It  is  not  known  that  anything  was  said  by  Muldrow 
and  the  creditor,  as  to  the  application  and  receipt  of  the  notes  being 
instead  of  the  six  hundred  dollars  ordered  to  be  paid  to  the  Commis- 
sioner, though  doubtless,  they  at  the  time  supposed  that  such  would  be 
the  eftect ;  yet  this  supposition,  on  the  part  of  the  creditor  at  least,  was 
coupled  with  the  understanding  that  the  case  would  go  on  to  a  close,  and 
the  matters  be  finally  decided  by  it.  A  dismission  of  the  bill  by  Muldrow, 
after  he  had  left  the  State,  was  never  thought  of  by  the  creditor,  nor 
intimated  by  Muldrow  to  him. 

In  this  stage  of  the  proceedings,  a  motion  was  made  by  Muldrow,  at 
February,  1835,  to  dismiss  the  bill ;  and  resisted  by  Bruce  and  the  credi- 
tors, on  the  ground  that  it  would  operate  a  fraud  upon  them — especially 
upon  the  creditors,  whose  claims  would  be  delayed,  and  possibly  barred, 
before  they  could  again  establish  them. 

The  Chancellor  refused  the  motion,  and  this  is  an  appeal  from  his 
decision. 

Ervin,  for  the  motion. 

Wilkins,  contra. 

O'Neall,  J.  In  a  case  situated  like  the  present,  I  think  the  bill 
cannot  be  dismissed  by  the  plaintiff.  It  is  true,  this  Court  went  very 
far,  in  Bossard  v.  Lester,  2  M'C.  Ch.  Rep.  419,  in  holding  in  a  case  in 
which  the  defendant  had  filed  a  cross  bill,  and  there  had  been  an  order 
referring  the  accounts,  that  the  plaintiff  might  dismiss  his  bill.  The  fact, 
in  that  case,  that  the  defendant  had  asked  and  obtained  leave  to  withdraw 
his  cross  bill,  constituted  a  strong  reason  why  a  similar  indulgence,  that 


*376]  COLUMBIA,   DECEMBER,   1835.  289 

of  dismissing  his  bill,  should  be  allowed  to  the  plaintiff.  The  Court  in 
that  case,  however,  very  distinctly  recognize  the  doctrine,  that  after  the 
decree  settling  the  rights  of  the  parties,  the  plaintiff  cannot  dismiss  the 
bill 

*This  case  is  a  bill  by  the  trustees,  admitting  a  fund  in  their 
hands  to  which  creditors  are  entitled,  and  calling  on  them  to  come  L 
in  and  prove  their  demands ;  and  praying  for  an  injunction  to  restrain 
them  from  proceeding  at  law.  The  injunction  was  obtained  ;  and  subse- 
quently a  decree  for  the  payment  into  Court,  of  a  sum  admitted  to  be  in 
their  hands :  this  sum  it  seems  has  been  paid  to  one  or  more  of  the 
creditors — a  further  sum  is  claimed  from  one  or  both  of  the  trustees. 
Muldrow  alone  moves  to  dismiss  the  bill :  this  is  resisted  by  Bruce,  the 
other  trustee,  and  the  creditors  who  have  come  in  and  proved  their 
deaiands. 

In  Lashley  v.  Hogg,  11  Ves.  602,  there  was  a  decree  for  an  account 
with  the  usual  direction  for  an  advertisement  for  creditors :  a  petition 
was  presented  under  an  arrangement,  with  the  consent  of  all  parties 
and  all  the  creditors  who  had  come  in,  the  time  having  expired  for 
dismissing  the  bill  and  disposing  of  the  fund  in  Court.  The  Lord  Chan- 
cellor said  he  could  not  dismiss  the  bill  after  a  decree,  except  upon  a 
re-hearing  or  appeal.  But  the  object  as  to  the  disposition  of  the  funds 
might  be  obtained  by  consent  upon  further  directions,  though  the  time 
bad  elapsed ;  yet  the  Court  will  let  in  creditors  at  any  time,  while  the 
funds  is  in  Court. 

That  case  was  a  much  stronger  one  for  the  dismission  than  this;  there, 
all  parties  consented  to  the  dismission  :  but  as  there  had  been  a  decree 
for  an  account,  the  Chancellor  refused  to  dismiss  the  bill.  In  this  case, 
a  part  of  the  fund  had  been  decreed  to  be  paid,  and  other  creditors  had 
come  in  and  proved  their  demands.  It  cannot  therefore  be,  that  this 
plaintiff,  Muldrow,  against  the  wish  of  his  co-plaintiff,  Bruce,  and  all  the 
creditors,  should  be  allowed  now  to  dismiss  his  bill.  The  Chancellor 
was  right  in  overruling  his  motion  : — his  decision  is  affirmed. 

Johnson,  J.,  and  Harper,  J.,  concurred 


Thomas  D.  Davis,  v.  L.  B.  Davis,  Administrator. 

An  executor  or  administrator  who  litigates  in  good  faith,  shall  be 
allowed  costs  out  of  the  estate  :  but  where,  with  sufficient  funds  in  his 
hands,  he  suffers  himself  to  be  sued,  having  no  *just  defence,  he  r^o-o 
must  pay  the  costs  himself.  On  judgment  by  default,  he  would  be  ^  '^' 
liable  for  the  costs  de  bonis  piropriis  at  law;  (Giles  v.  Pratt,  1  Hill, 
244,)  and  in  Equity,  he  can  only  be  excused  by  showing  a  want  of  funds. 


Ex  parte,  J.  B.  Miller,  Commissioner. 
The  Act  of  1824,  p.  21,  requiring  Masters  and  Commissioners  to 


290  SOUTH    CAROLINA   EQUITY   REPORTS.  [*378 

report,  annually,  to  the  Court,  "  what  guardians  and  trustees  have  not 
annually  made  their  returns,"  and  "to  set  apart  certain  days  for  reference 
of  such  accounts,  &c.,"  was  intended  to  protect  wards  and  cestui  que 
trusts  whose  funds  were  under  the  control  of  the  Court,  and  not  to 
impose  duties  oli  the  Commissioner,  which  would  be  impossible  or  useless 
and  nugatory  :  And  therefore  the  Commissioner  is  not  guilty  of  any 
neglect  of  duty  in  not  reporting  to  the  Court,  the  case  of  a  guardian  who 
had  finally  settled  with  his  ward,  and  that  fact  had  been  before  reported 
to  the  Court;  or  where  a  guardian  was  dead,  and  his  death  had  been 
previously  reported ;  or  where  a  guardian  had  removed  from  the  State, 
and  which  had  been  before  reported. 


[The  following  case  was  decided,  in  Charleston,  March,  1835,  but  not 
received  iu  time  for  publication  with  the  cases  of  that  Term.  J 

Frederick   Fable,  Elizabeth  Fable,  and   Catharine  Franks,  v. 
Alexander  Brown,  Executor  of  John  Fable. 

The  civil  law  may  be  consulted  in  explanation  of  our  law,  but  not  as  authority 
[*390] 

The  common  law  doctrine  of  villeaage,  does  not  apply  to  the  condition  of  slavery 
here.  [*390] 

The  status  of  our  slaves  ascertained  by  reference  to  what  was  anciently  held  to  be 
the  condition  and  disabilities  of  alien  enemies  and  Pagans.  [*o92] 

The  anomalies  in  the  conditon  of  our  slaves  referable  to  our  own  legislation.  [*395] 

A  slave  being  a  personal  chattel,  is  incapable  of  holding  property  in  his  own  right, 
and  the  possession  and  title  must  be  referred  to  his  master.  [^39G] 

Whether  a  bequest  is  given  absolutely,  depending  on  the  friendship  and  good  will  of 
the  legatee  to  deal  with  it  as  testator  recommends  or  conditionally  and  coupled 
with  a  trust,  depends  on  this:  if  it  was  intended  that  he  should  have  it  entirely 
in  his  own  power  and  discretion  to  make  the  application  or  not,  it  is  absolutely 
given ;  but  if,  on  the  face  of  the  will,  there  is  declaration  plain,  that  he  is  to  take 
it  in  trust,  though  the  trust  be  not  declared  or  ineifectually  declared,  or  become 
incapable  of  taking  effect,  the  party  taking  shall  be  a  trustee  for  those  who  would 
take  either  under  the  will  or  at  law.  [*398] 

Where  a  testator  directed  his  executor  out  of  the  funds  of  his  estate  to  purchase 
a  slave,  (his  son,)  —  Ile/d  to  be  an  attempt  to  evade  the  law  against  emancipation, 
and  if  purchased,  the  slave  would  become  part  of  the  estate.  [*399] 

Applying  the  doctrine  in  respect  to  alien  enemies  to  the  condition  of  our  slaves,  it 
was  held:  that  as  an  alien  enemy  may  take  lands  but  cannot  hold  ;  and  as  a  chose 
in  action  given  to  him  is  not  void,  although  he  cannot  maintain  an  action  on  it; 
so  a  slave  may  take,  but  cannot  hold  land,  and  his  master  could  only  hold  until 
ofBce  found  for  the  State  ;  and  so  of  a  legacy  given  to  a  slave  it  is  not  void,  but 
it  cannot  be  recovered  from  the  executor  by  either  slave  or  master,  but  may 
escheat  to  the  State  in  the  hands  of  the  executor.  Therefore  where  testator  by 
his  will  gave  his  estate  to  his  children  who  were  slaves,  a  bill  filed  by  the  next  of 
kin  against  the  executor  was  dismissed.  [*400] 

Charleston — January,  1832. 

The  following  decree  of  the  Chancellor  presents  a  full  statement  of  the 
case : — 

De  Sausstjre,  Chancellor.    John  Fable,  a  foreigner,  settled  in  Charles- 


*378]  CHARLESTON,  MARCH,  1S35.  291 

ton  some  years  af?o,  and  acqnircd  some  property,  of  wliich  *a  r^^Qtrn 
house  and  lot  in  the  city  constitntes  the  principal  and  most  valu-  I  ^'"^ 
able  part.  He  had  two  (illegitimate)  colored  children  by  a  female  slave. 
Before  his  death,  he  made  and  duly  executed  his  last  will  and  testament, 
on  the  24th  June,  1831,  by  which  he  beCiueathed  as  follows: — He  desired 
his  personal  effects  to  be  immediately  sold,  and  out  of  the  moneys  arising 
therefrom,  he  directed  his  debts  and  funeral  expenses  to  be  })aid.  If  that 
fund  should  not  be  sufficient,  then  the  executor  might  sell  any  other  of 
his  property,  to  satisfy  all  claims  justly  due  and  unpaid  out  of  his  })crsonal 
property.  He  bequeathed  a  legacy  of  $100,  to  be  divided  equally  among 
the  children  of  his  brother,  Frederick.  He  then  says  :  "  The  residue  of 
my  property  I  will  and  bequeath  to  my  children,  whom  I  acknowledge, 
to  be  divided  share  and  share  alike — whatever  real  estate  I  am  now  pos- 
sessed of,  it  is  my  will  that  it  should  be  sold,  and  the  proceeds  vested  in 
any  public  stock  of  this  State,  or  of  the  United  States.  The  interest  arising 
from  the  stock  so  invested,  to  be  appropriated  to  the  support  of  my  son, 
John,  and  daughter,  Elizabeth,  at  the  discretion  of  my  executor,  whom  I 
constitute  and  appoint  as  the  guardian  of  the  said  John  and  Elizabeth. 
It  is  further  my  desire  that  my  executor  will  purchase,  if  practicable,  ray 
son,  out  of  the  funds  of  my  estate,  previous  to  a  division  of  the  same." 
The  testator  appointed  Mr  Alexander  Brown,  the  executor  of  his  will. 
He  died  not  long  after,  and  Mr.  Brown  ]iroved  the  will  and  qualified 
thereon  as  executor.  The  legatees  are  living.  Both  the  children  are  in 
servitude,  and  held  by  the  game  owner.  The  personal  estate,  it  is  said, 
wall  pay  the  debts,  and  perhaps  leave  some  surplus.  The  plaintifls  claim 
to  be  the  next  of  kin  of  the  testator,  and  claim  his  estate  as  distributees 
thereof  alleging  that  the  provisions  of  the  will  in  favor  of  the  illegitimate 
colored  children  of  the  testator,  who  are  held  in  slavery,  cannot  lawfully 
take  effect,  and  therefore  as  the  property  is  not  well  and  effectually  dis- 
posed of,  the  plaintiffs  are  entitled  thereto.  The  defendant,  the  executor, 
resists  the  claim  of  the  plaintiffs  on  the  ground  that  the  plaintiffs  have 
not  sufficiently  established  their  relationship  to  the  testator,  or  that  they 
are  the  only  persons  in  the  degree  of  relationship  which  entitles  them  to 
the  distribution  of  the  estate  supposing  it  distributable.  The  evidence,  I 
think,  establishes  sufficiently  that  the  plaintiffs  are  the  relations  entitled 
to  distribution,  if  there  be  any  distributable  estate.  The  evidence  of  Mr. 
Abraham  Buchan,  as  delivered  in  the  Court,  is  clear,  that  *he  r:):oon 
knew  John  Fable  fifteen  years  before  his  death.  He  heard  him  •- 
say  that  he  had  a  brother  named  Frederick,  in  Philadelphia,  and  two 
sisters,  his  only  relatives  in  this  country ;  he  did  not  say  that  he  had  any 
other  relatives.  Witness  knew  all  the  family.  There  are  no  more  of 
them.  Both  sisters  were  named.  One  of  them  died  before  her  brother, 
leaving  two  children.  John  Fable  died  in  July,  1831.  The  depositions, 
which  were  read  but  not  delivered  to  me,  are  not  so  clear  as  to  the  re- 
lationship. But  there  is  sufficient  before  the  Court  to  go  on  with  the 
cause.  Some  of  the  plantiffs  are  entitled,  if  there  be  anything  for  dis- 
tribution, and  further  inquiries  can  be  made  as  to  that  point,  if  it  should 
be  found  necessary.  Another,  and  the  most  important  objection  to  the 
recovery  of  the  plaintiffs,  is  that  the  property  of  the  testator  is  effectually 
disposed  of  by  his  last  will  and  testament,  and  there  is  nothing  undisposed 
of  which  remains  to  be  distributed  to  the  next  of  kin.     The  executor, 


1 


292  SOUTH   CAROLINA   EQUITY   REPORTS.  [*380 

lieing  desirous  to  perform  the  duties  imposed  on  him,  by  the  will  of  the 
testator,  in  his  answer  submits  the  following  questions  to  the  Court  for 
its  direction  : — 

1.  Whether  he  is  bound  or  at  liberty  to  purchase  the  boy,  John,  (his 
mistress  being  willing  to  sell  him)  out  of  the  funds  of  the  estate,  and  to 
divide  the  residue  of  the  estate  (if  any)  between  the  said  children,  John 
and  Elizabeth  ;  and  to  sell  the  real  estate  and  vest  it  as  directed  by  the 
will,  and  pay  over  the  income  arising  therefrom,  at  his  discretion,  to  the 
said  children  of  testator. 

2.  Whether  he  is  bound  to  pay  the  residue  of  the  personal  estate, 
(after  payment  of  debts  and  legacies  aforesaid)  and  the  income  of  the 
stocks  to  be  purchased  with  the  proceeds  of  the  real  property  to  the 
owner  of  the  said  children  (John  and  Elizabeth.) 

3.  Whether  he  is  not  bound  to  pay  over  the  whole  residue  of  the  per- 
sonal estate,  to  the  said  owner  of  the  slaves. 

The  questions  involved  in  this  case,  are  certainly  important  and  diffi- 
cult, and  were  so  considered  by  the  bar  in  the  argument,  though  they 
were  not  as  fully  argued  as  is  customary  with  the  gentlemen  of  the  bar. 
There  is  one  point,  which  it  is  as  well  to  put  out  of  the  way  at  once. — 
Our  statute  prohibits  emancipation — there  is  no  attempt  at  emancipation 
in  the  will  we  are  considering.  It  leaves  one  of  the  colored  children  of 
the  testator  in  slavery  to  the  present  owner.  It  directs  the  executor  to 
purchase  the  other  child  from  his  owner.  But  it  does  not  direct  his 
^„„,-,  emancipation.  The  executor  is  bound  to  purchase  him,  and  *he 
-^  must  take  the  bill  of  sale,  or  title  deed  to  himself.  This  is  no 
violation  of  our  statute,  and  can,  and  ought  to  be  carried  into  effect.  In 
what  way  he  shall  treat  the  boy,  and  how  employ  him,  is  for  his  own  dis- 
cretion, in  which  the  testator  had  unbounded  confidence.  We  are  next 
to  consider  the  question,  whether  the  dispositions  in  the  will  respecting 
the  property  can,  or  ought  to  be  carried  into  effect.  The  executor  may 
certainly  sell  the  property  as  he  is  directed  by  the  will — the  difficulty  is, 
will  he  be  justified  or  permitted  to  apply  the  income  arising  from  the 
sales,  for  the  support  of  the  slaves,  according  to  his  discretion,  as  direct- 
ed by  the  testator.  The  objection  may  come  from  two  quarters.  The 
plaintiffs  may,  and  do  contend,  that  the  property,  or  the  proceeds  of  it,  is 
not  so  legally  disposed  of  by  the  will  as  to  be  effectual,  consequently  it  is 
undisposed  of ;  and  that  whenever  a  legacy  is  so  given  that  it  cannot  take 
effect,  it  sinks  into  the  estate,  and  is  distributable.  It  may  be  further 
contended,  and  it  was  so  argued  at  the  bar,  that  if  those  legacies  could 
not  be  effectual  for  the  slaves,  they  would  take  and  hold  for  their  master 
or  mistress ;  and  that  would  defeat  the  plaintiffs'  claim.  On  the  first 
point,  the  plaintiffs  relied  on  a  decision  made  by  me  twenty  years  ago, 
and  reported  in  4  Eq.  Hep.  26G,  Executors  of  Walker  v.  Bostwick  & 
Walker.  In  the  report  of  that  case,  the  devises  and  bequests  are  not  set 
forth.  But  it  is  said,  the  principal  question  made  in  the  case,  was  whether 
the  devises  and  bequests  of  real  and  personal  estate  made  by  the  testator, 
Joseph  Walker,  to  trustees  in  trust  for  his  slave,  Betsey,  and  her  three 
children,  are  valid  devises,  and  can  take  effect.  There  was  a  bequest  of 
freedom  to  those  slaves,  which  failed.  The  judge  was  of  opinion  that 
the  legatees,  being  slaves,  were  incapable  of  taking  such  devises  under 
the  will,  and  therefore  the  legacies  sunk  into  the  estate,  and  were  appli- 


*381]  CHARLESTON,    MARCH,    1835.  293 

cable  to  pay  debts,  &c.  In  that  case,  the  estate  was  greatly  embarrassed, 
and  there  was  no  tittle  of  anything  left.  The  point  was  not  very  fully 
argued,  and  there  was  no  appeal.  Reliance  was  placed  on  one  authority, 
that  of  Taylor's  Elements  of  Civil  Law,  (429.)  (See  also  Cooper's 
Justinia,  411,)  by  which  it  is  laid  down  that,  by  the  civil  law,  slaves 
could  not  take  property  ))y  descent  or  purchase;  which  was  considered 
to  be  the  law  of  this  country. 

Mr.  King,  in  his  argument  for  defendant,  in  the  case  we  are  now  con- 
sidering, contended  that  the  argument  laid  down  by  Taylor,  *is  rjcqog 
not  sustainable  unqualifiedly  by  the  authorities,  and  that  even  if  L 
the  slave  legatee  cannot  hold  for  himself,  he  may  take  and  hold  for  his 
master — and  that  would  be  sufficient  to  defeat  the  plaintiffs,  and  it  would 
be  for  the  master  afterwards  to  decide  what  use  he  would  make  of  this 
advantage.  There  is  certainly  considerable  difficulty  in  this,  and  other 
questions  which  arise  out  of  the  conditions  of  slaves.  Our  statute  con- 
siders them  as  chattels,  yet,  in  many  cases,  they  are  treated  by  our  laws 
as  persons,  and  reasonable  persons  accountable  for  their  actions.  They 
are  punished  for  crimes,  which  chattels  could  not  be.  It  is  their  equivo- 
cal condition  which  creates  the  difficulty.  It  was  argued,  that  by  the 
civil  law,  persons  capable  of  being  executors,  are  alone  capable  of  being 
legatees,  (Domat,  143,)  and  that  slaves  cannot  he  executors  by  our  law. 
This  is  true.  But  I  am  not  sure  that  the  civil  law  rule  would  apply  in 
all  respects  to  the  condition  of  our  slaves  ;  at  least  I  would  not  venture 
to  pronounce  upon  it  until  the  case  arose,  and  it  was  fully  argued.  I  am 
rather  inclined  to  think  that  the  will  of  the  testator  can  be  carried  into 
effect  in  this  case,  without  deciding  the  refined  questions  which  have  been 
made  in  the  argument.  I  put  out  of  the  case  the  directions,  as  to  the 
personal  property,  because  it  was  stated  and  understood  that  the  personal 
estate  would  scarcely  do  more  than  pay  the  debts,  and  the  legacy  of  one 
hundred  dollars  to  the  relations  of  testator.  The  real  estate  is  directed 
to  be  sold,  and  the  proceeds  vested  in  stock,  and  the  interest  to  be  ap- 
propriated to  the  support  of  the  testator's  son  and  daughter,  at  the  dis- 
cretion of  the  executor.  The  direction  to  sell  the  estate  is  not  against 
law.  The  direction  to  invest  the  amount  of  sales  is  not  prohibited.  Is 
it  against  law  to  direct  the  executor  to  apply  the  income  to  the  support 
of  two  slaves  ?  There  is  no  direct  prohibition  by  any  statute  ;  it  is  only 
by  inference  from  their  condition,  that  such  prohibition  can  be  presumed 
to  arise.  But  suppose  the  testator  had  directed  the  executor  to  expend 
one  hundred  dollars  annually,  in  support  of  a  favorite  old  horse,  for  past 
service,  would  not  the  executor  be  justifiable  in  doing  so  ?  Would  he 
not  be  bound  to  do  so,  in  order  to  give  effect  to  the  will  ?  If  he  did  it, 
and  the  charge  appeared  in  his  accounts,  could  his  distributees  or  resid- 
uary legatees  legally  object  to  it  ?  I  think  not.  Upon  the  wliole,  there- 
fore, I  am  of  opinion  the  executor  may,  and  ought  to  give  efi'ect  to  the 
will  in  this  case,  and  that  the  plaintiffs  ^claiming  to  be  distribu-  r-rfjooq 
tees,  are  not  entitled  to  call  the  executor  to  account  for  ])erforra-  L 
ing  the  will  of  the  testator  on  tliis  subject.  The  owner  of  the  slaves  is 
not  before  the  Court ;  and  if  she  has  rights,  they  are  not  now  in  ques- 
tion. 

It  is  therefore  ordered  and  decreed,  that  the  bill  of  the  plaintiffs  be 
70L.  1— 42 


294  SOUTH    CAROLINA    EQUITY    RErORTS.  [*383 

dismissed,  but  without  costs.     I  would  desire  that  an  appeal  should  be 
made. 

The  plaintiffs  appeal  from  the  decree  of  the  Chancellor,  upon  the  fol- 
lowing grounds : 

1.  That  by  the  laws  and  statutes  of  this  State,  no  slave  is  capable  of 
acquiring  a  title,  either  at  law  or  in  equity  by  descent,  or  by  purchase, 
to  any  property,  real  or  personal. 

2.  That  the  bequest  and  devise  to  the  slaves,  John  and  Elizabeth,  in 
the  present  case,  are  null  and  void,  by  reason  of  their  incapacity  to  take  ; 
and  that  the  property  thus  disposed  of,  is  distributable  among  the  plain- 
tiffs, as  next  of  kin. 

3.  That  as  a  slave  is  incapable,  under  our  laws,  of  acquiring  a  title  to 
property,  the  owner  of  the  slaves  in  the  present  case  cannot  be  permitted 
to  claim  a  title  through  the  said  slaves. 

4.  That  the  civil  law  on  the  subject  of  slavery,  is  not  the  law'  of  this 
State  ;  that  this  subject  is  under  the  -exclusive  regulation  of  our  own 
statutes,  and  that  the  decision  of  the  Chancellor  in  the  case  of  Walker  i'. 
Bostwick,  in  4  Eq.  Rep.  206,  is  in  strict  accordance  with  the  laws  and 
policy  of  this  State. 

5.  That  if  by  possibility,  said  bequest  and  devise  could  be  allowed  to 
take  effect,  it  would  be  only  as  to  the  income  from  the  residue,  during  the 
life  of  said  John  and  Elizabeth,  and  at  the  expiration  thereof,  the  property 
itself  would  pass  to  the  plaintiffs. 

6.  That  the  negro  John,  if  purchased  by  the  executor,  will  constitute  a 
portion  of  the  testator's  estate,  and  be  distributable  among  the  plaintiff's, 
as  the  next  of  kin. 

F^nleij,  for  the  appellants.  The  devise  to  the  testator's  children,  who 
are  slaves,  is  null  and  void  ;  for  a  devisee  must  be  a  person  known  in  law, 
and  capable  of  taking.  Slaves  are  not  recognized  by  our  laws  as  having 
any  rights,  and  they  are  incapable  of  taking  and  holding  property. 
Walker  v.  Bostick,  4  Eq.  Rep.  266. 

Is  that  case  law  !  On  this  question,  we  must  look  only  to  our  own 
*'^S41  *peculiar  code,  differing  both  from  the  civil  and  common  law  in 
-^  many  particulars.  The  civil  law,  which  recognizes  the  condition  of 
absolute  slavery,  may  be  looked  to  for  explanation,  but  it  is  not  binding 
as  authority.  The  Act  of  1740,  P.  L.  163,  declares  slaves  to  be  chattels 
personal  "to  all  intents,  purposes,  and  constructions  whatsoever."  How 
then  can  a  chattel  have  rights,  or  hold  property  ?  Or  how  can  a  slave 
enforce  his  right  ?  He  is  incapable  of  maintaining  a  suit.  Is  there  any 
authority  for  exempting  a  slave  from  the  general  disability  which  his  cha- 
racter of  chattel  imposes  ?  There  is  none.  For  some  purposes,  they  are 
regarded  by  the  Act  of  1740,  and  other  statutes,  as  persons — that  is,  in 
relation  to  crimes, — their  moral  responsibility  is  recognized  for  the  safety 
of  society ;  but  as  regards  civil  rights,  they  are  mere  chattels.  By  the 
civil  law,  whatever  the  slave  acquires  by  bequest  or  otherwise,  belongs  to 
the  master.  Just.  Lib.  ii.  Tit.  ix.  §  3,  4.  Does  this  rule  become  a  part 
of  our  law  ?  By  the  same  law,  a  slave  could  be  an  executor,  2  Domat, 
143.  He  could  make  contracts.  Just.  Lib.  iii.  Tit.  xviii.  He  could 
trade,  and  hold  his  peculium,  Just.  Lib.  iv  Tit.  vii.  §  4.  The  slave  of 
the  civil  law  was  a  white  man,  and  when  emancipated,  became  a  citizen ; 


*384]         CHARLESTON,  MARCH,  1835.  295 

whilst  here  emancipation  is  expressly  proliibited,  and  those  alrcarly  eman- 
cipated, are  denied  many  civil  rights.  The  civil  law  rules  have  not  been 
adopted  in  this  State  ;  for  in  the  case  of  Sally,  1  r3ay,  258,  it  was  held  in 
opposition  to  the  civil  law,  that  a  slave  might  by  her  acquisitions  pur- 
chase the  freedom  of  another,  and  the  purchase  did  not  result  to  the  use 
of  the  master  ;  the  same  doctrine  was  held  in  Gregg  v.  Thompson,  2  Con. 
Rep.  31.  The  34th  clause  of  the  Act  of  1740,  subjects  property  in  the 
hands  of  a  slave  to  forfeiture.  (See  also  Blake  v.  Clarke,  3  M'C.  279  ) 
It  appears  then  from  our  statute  law,  and  the  decisions  of  our  Courts, 
that  the  civil  law  does  not  apply  here,  at  least,  as  having  any  binding 
authority.  And  although  the  common  law  was  adopted  generally,  the 
ancieut  tenures  were  excepted ;  and  the  doctriue  of  villenage  does  not 
apply  to  the  condition  of  slavery  here;  for  at  common  law,  the  villein 
had  civil  rights  against  every  one  except  his  lord.  Coke,  Lit.  123,  b. 
124,  a.  118,  a.  And  he  might  acquire  real  or  personal  estate,  and  if 
aliened  before  seizure,  the  lord  could  not  avoid  the  sale. 

But  conceding  the  devise  to  the  slaves  to  be  valid — can  it  extend  beyond 
a  life  estate?  For  they  can  have  neither  heirs,  nor  *executors.  r^ooc 
And  if  the  executor  should  purchase  John,  would  he  not  become  L 
the  property  of  the  estate?  2  Fonb.  118.  When  an  estate  is  devised  on 
trusts  which  cannot  be  carried  into  effect,  the  trusts  result  for  the  benefit 
of  the  next  of  kin,  1  Mad.  61 ;  4  Yes.  433  ;  Morice  v.  Bishop  of  Durham, 
9  Ves.  399  ;  Gibbs  v.  Rumsey,  2  Ves.  and  Beames,  294. 

Can  the  Court  sustain  the  direction  to  the  executor,  to  maintain  the 
slaves  ?  How  is  this  practicable  ?  Or  what  right  has  the  executor  to 
interfere  in  any  way  with  the  slaves  of  another,  even  by  maintaining  them  ? 
But  at  all  events,  the  direction  cannot  extend  beyond  their  lives,  and  a 
trust  in  the  fund  must  then  result  for  the  next  of  kin.  Geiger  v.  Brown, 
4  M'C.  427. 

irCrady,  contra.  Slaves  had  long  been  recognized  by  our  laws  before 
the  Act  of  1740,  but  wherever  that  Act  prescrilDes  a  rule  in  regard  to 
them,  it  is  imperative ;  it  does  not,  however,  materially  conflict  with  the 
civil  law  in  relation  to  slavery.  We  have  the  authority  of  this  Court  for 
saying  that  the  civil  law  does  apply  to  the  condition  of  slavery  in  this 
State,  in  the  case  of  Wingis  v.  Smith,  3  M'C.  Rep.  400.  Slaves  are 
property,  and  are  called  chattels  in  the  Act  of  1740,  but  merely  as  giving 
character  to  this  species  of  property,  and  in  contradistinction  to  realty. 
The  Act  was  not  intended  to  alter  their  condition,  or  to  deprive  them  of 
any  privileges  which  they  had  before,  except  in  those  particulars  enume- 
rated therein.  Under  the  Act,  a  slave  may  hold  any  property,  except 
as  there  expressly  prohibited.  And  if  he  cannot  hold  for  his  master, 
what  security  is  there  for  property  ?  Although  chattels,  they  are  human 
beings,  and  the  objects  of  benevolence.  The  master  has  not  absolute 
dominion  over  his  slave,  for  he  is  protected  by  law  in  the  enjoyment  of 
life. 

It  does  not  follow  because  the  slaves  cannot  maintain  a  suit  to  enforce 
the  execution  of  the  trust,  that  it  is  void.  An  outlaw  or  an  alien  enemy 
may  be  a  legatee,  notwithstanding  he  cannot  sue.  3  Bos.  &  Pul.  113. 
So  a  legacy  to  an  infant  in  ventre  sa  mere  is  good,  although  no  suit  can 
be  brought  immediately.     To  make  the  trust  void,  it  must  appear  that  it 


296  SOUTH    CAROLINA    EQUITY    REPORTS.  [*385 

is  prohibited  by  law ;  and  although  there  may  be  no  one  capable  of  en- 
forcing the  trust  against  the  executor,  if  it  be  not  prohibited,  its  execution 
may  well  be  left  to  himself.  Is  the  trust  to  maintain  the  children  prohi- 
bited ?  By  what  law  ?  It  may  be  impolitic,  but  it  is  not,  therefore, 
illegal.  A  trust  to  support  bastard  children  may  be  very  impolitic,  but 
^„„„-,  is  ^nevertheless  good,  and  will  be  enforced.  So  devises  to  cha- 
-l  ritable  uses,  but  before  the  statutes  of  mortmain  they  were  good. 

Slaves  are  not  absolutely  incapable  of  taking  property  They  may 
acquire  and  hold  for  the  benefit  of  their  master.  Suppose  a  slave  find 
money  ;  cannot  the  master  claim  it  against  all  the  world,  except  the  owner  ? 
Suppose  a  slave  saves  something  from  a  wreck,  cannot  his  master  libel  for 
the  salvage  ?  In  the  case  of  the  brig  Ariel,  salvage  was  allowed  to  a 
slave,  as  a  person. 

There  is  no  action  at  law  for  a  legacy.  It  is  given  to  the  executor  in 
trust  to  execute  the  testator's  intentions,  and  if  these  are  contrary- to  law, 
a  trust  results  in  favor  of  the  next  of  kin. 

Cases  are  cited  on  the  other  side  to  show  that  if  the  property  be  not 
effectually  disposed  of,  a  trust  results  for  the  next  of  kin  ;  but  there  is  no 
question  that  the  estate  here  is  effectually  disposed  of,  for  if  the  slaves,  as 
such,  cannot  take,  their  owner  can,  and  is  entitled  to  the  legacy,  both  by 
the  civil  and  common  law.  The  civil  law  has  been  held  to  be  more 
directly  applicable  to  their  condition  ;  and  it  is  conceded  that  if  it  applies 
to  this  case,  the  owner  is  entitled  to  the  legacy. 

King,  on  the  same  side.  The  plaintiffs  are  citizens  of  a  non-slavehold- 
ing  State,  seeking  to  entail  slavery  on  the  children  of  their  brother.  So 
far,  then,  as  the  mere  justice  of  the  case  is  concerned,  they  have  no  claims 
on  the  Court. 

Can  the  slaves,  the  children  of  the  testator,  take  under  this  will  ?  There 
is  no  statutory  provision  prohibiting  them  ;  and  the  case  of  Walker  v. 
Bostick,  4  Eq.  Rep.  266,  is  anomalous  in  its  character,  and  unsupported 
by  authority.  As  there  is  no  statute,  the  common  law  is  the  only  law 
which  can  apply  to  the  case. 

The  Act  of  1712,  making  the  common  law  of  force  in  this  State,  ex- 
cepted the  ancient  tenures.  Villenage  tenure,  therefore,  never  existed 
here.  Yillenage,  as  a  common  law  status,  was  made  of  force  here.  Vil- 
lenage regardant  was  attached  to  the  manor,  and  was  not  made  of  force 
here.  Villenage  in  gross  belongs  to  the  person  of  the  master;  and  this 
is  the  condition  of  slavery  here.  What  was  the  condition  of  the  villein  at 
common  law  ?  Quicquid  acquiritur  servo  acquiritur  domino.  Co.  Lit, 
116,  a.  117,  a.  119,  a.  ;  Smith  v.  Stapleton,  Plow.  435.  "All  acquisi- 
tions of  property,  real  and  personal,  made  by  the  villien,  in  whatever  way 
5,cgg^-j  arising,  &c.,  belonged  to  his  Lord  "  Hargrave's  notes(116)  to*Co. 
Lit.  117,  a.  This  common  law  rule  is  of  force  in  this  State,  as  appli- 
cable to  the  condition  of  our  slaves,  and  the  Act  of  1740  recognizes  it  by 
the  exceptions  which  have  been  tlierein  made  to  it.  The  case  of  Gregg 
y.  Thompson,  2  Con.  Rep.  331,  is  rather  in  opposition  to  this  rule,  but 
it  excepts  the  very  case  before  the  Court : — "That  when  it  is  said  that 
whatever  they  acquire  become  their  master's,  it  is  meant  whatever  they 
absolutely  acquired  by  gratuity,  &c.,  of  others."  So  that  this  case  does 
not  decide  that  a  gratuity  to  the  slave  would  not  be  the  master's  ;  but 


*387] 


CHARLESTON,    MARCH,    1835.  297 


only  that  as  to  contracts  made  with  a  slave,  if  the  master  approve,  the 
benefit  belontjs  to  the  slave. 

For  the  civil  law  doctrine,  see  Poth.  Civ.  Law  24;  Taylor's  Elements 
of  Civil  Law,  429.  In  the  case  of  Sally,  1  Bay,  260,  C.  J.  llutledse 
held,  in  exact  conformity  to  the  common  law  doctrine,  that  tlie  actpiisi- 
tion  of  the  villein  aliened  before  seizure  by  the  lord,  was  good. 

The  slaves  may  take  the  gratuity  under  the  will.  Whether  they  can 
take  more  than  a  life  estate,  must  depend  on  the  will.  If  they  take  at 
all,  they  take  absolutely.  The  case  of  Brown  v.  Geiger  does  not  apply  ; 
the  estate  there  was  expressly  limited  for  life.  But  when  it  is  a  general 
bequest,  the  estate  is  absolute.   2  Roper  on  Wills,  33L 

Is  not  the  execntor  the  haeres  f actus  nnder  the  will,  and  authorized  to 
do  exactly  what  the  testator  himself  could  have  done?  Unless  there  is 
something  in  the  will  to  the  contrary,  the  whole  property  is  in  the  execu- 
tor. In  the  Executors  v.  the  Heirs  of  Radclitte,  the  testatrix  merely 
made  her  will  naming  her  executors  without  making  any  disposition  of 
the  property  ;  and  it  was  held  that  he  was  a  trustee  for  the  next  of  kin  : 
but  in  this  case  the  executor  is  directed  to  take  and  hold  against  the  next 
of  kin  ;  the  implication  cannot  therefore  arise. — See  Wilson  v.  Wilson, 
8  Bin,  562,  opinion  of  Yates,  J. 

Grimke,  in  reply.  This  case  is  interesting,  both  as  to  the  principles 
of  law  involved,  and  the  general  policy  of  the  State.  If  the  defeudant 
succeed,  the  decision  will  endanger  the  safety  of  our  domestic  institu- 
tions. 

Where  are  we  to  find  the  principle  by  which  to  decide  this  case  ?  It 
is  said,  in  the  common  law.  What  common  law  ?  Not  that  which  was 
adopted  in  1712.  The  doctrine  of  villenage  was  *then  obsolete,  i-^qqq 
Villenage  never  existed  in  Pennsylvania,  1  Dallas,  167,  and  never  L 
in  South  Carolina  ;  and  the  exploded  and  obsolete  doctrines  of  the  com- 
mon law  in  relation  to  it,  have  no  application  in  the  case.  The  civil  law, 
as  it  has  come  down  to  us,  is  a  Roman  statute  of  Justinian.  We  cannot 
adopt  it  as  our  guide,  nor  be  governed  by  it  as  authority.  The  slave, 
both  of  the  common  and  civil  law,  was  regarded  as  having  a  i>tat,us  in 
society,  in  relation  to  other  persons  than  his  master.  Not  so  here. — 
Color  here  is  prima  facie  evidence  of  slavery.  Not  so  in  England  or 
Rome.  In  Rome  and  Greece  the  mechanic  arts  and  trade  were  consid- 
ered degrading,  and  committed  exclusively  to  slaves.  No  such  idea  is 
entertained  here.  As,  then,  the  condition  of  our  slaves  is  different  from 
that  of  the  villeins  of  England  and  the  slaves  of  Rome,  and  as  our  cus- 
toms and  policy  are  widely  at  variance  from  theirs,  neither  the  civil  law 
of  the  one,  nor  the  common  law  of  the  other,  applies  to  the  state  of 
slavery  here.  We  mnst  look  then  to  our  own  legislation,  founded  on  our 
own  peculiar  policy,  in  order  to  fix  the  condition  of  our  slaves. 

In  1683,  1690,  and  1696,  Acts  were  passed  for  the  regulation  of  sla- 
very. The  Act  of  1740  is  a  mere  recognition  of  the  stafiifi  of  the  slave, 
before  and  at  the  time  of  its  passage.  Slaves  were  regarded  as  bona  et 
catalla,  before  that  time.  And  so,  too,  they  are  regarded  by  the  civil 
law.  By  that  Act  they  are  declared  goods  and  chattels,  "to  all  intents, 
purposes  and  constructions  whatsoever  ;"  and  this  excludes  the  conclu- 
sion that  in  any  point  of  view,    (except  where  so  regarded   by  statute,) 


298  SOUTH   CAROLINA    EQUITY    REPORTS.  [*388 

they  are  to  be  considered  as  persons.  The  Acts  of  ISOO  and  1820,  show 
tliat  slavery  is  regarded  >as  a  political  sul)ject,  by  imposing  restraints  on 
the  master  in  regard  to  emancipation.  The  general  rule  for  the  guide  of 
our  Courts  must  be,  what  will  best  promote  the  views  of  the  people  as 
expressed  in  the  legislative  enactments  in  relation  to  this  class  of  persons. 
The  legislature  has  fixed  the  character  of  the  slaves  as  bona  et  catalla  in 
every  point  of  view,  except  where  it  makes  them  persons — as  in  relation 
to  crimes.  But  in  all  civil  matters  they  are  mere  chattels,  and  the  mere 
agents  or  instruments  of  their  master.  As  then  the  slave  has  no  civil 
rights,  as  he  is  a  mere  chattel,  and  as  there  is  no  statutory  provision  au- 
thorizing him  to  take,  he  is  wholly  incapable  of  taking  a  legacy  under  a 
will,  either  directly  or  indirectly.  In  Sally's  case,  1  Bay,  360,  the  deed 
*QQql  ^^  emancipation  from  the  master,  prevented  a  recovery* — not  that 
-'  the  slave  could  acquire  property.  No  one  can  take  through  a 
trustee,  who  cannot  take  directly.  An  alien  can  take,  but  cannot  hold. 
In  North  Carolina  this  question  has  been  adjudged.  It  was  there  held, 
that  a  slave  cannot  take  by  devise. — Cuniiingham's  heirs  u.  Cunningham's 
executors,  Cam.  &  Norwood's  Rep.  353  ;  and  in  the  same  case,  Taylor's 
Rep.  209,  that  a  devise  for  the  maintenance  of  a  female  slave  and  tlie 
children  is  void.  That  the  condition  of  slaves  does  not  depend  on  the 
feudal  or  civil  law. — See  5  Harris  &  John.  Rep.  190.  We  must  look  to 
our  peculiar  policy  as  indicated  in  our  own  legislation,  and  in  that  we 
find,  that  to  interfere  with  the  slaves  of  another  is  prohibited.  The  ef- 
fect of  allowing  the  devise  in  this  case,  would  be  to  render  the  slaves  dis- 
contented. It  would  go  further.  It  would  defeat  the  law  against  eman- 
cipation ;  for  they  would  become  quasi  free  persons. 

As  to  the  will.  Will  the  Court  permit  the  executor  to  sell  the  land  for 
an  illegal  or  immoral  purpose  ?  As  to  the  personal  property,  the  title  is 
in  the  executor — a  principle  originating  in  the  Ecclesiastical  law,  which 
vested  everything  in  the  Church  for  the  good  of  the  deceased's  soul.  In 
this  State  the  executor  is  regarded  a  trustee  for  the  next  of  kin,  the  de- 
vises failing  or  there  being  a  residuum  undevised.  In  this  case,  it  was 
plainly  intended  that  the  executor  should  not  take.  Frederick  Fable  is 
not  mentioned  in  the  will,  and  there  can  be  no  conclusion  against  him. 
It  is  the  ordinary  case  of  a  defective  devise  :  it  falls  into  the  residuum 
and  goes  to  the  residuary  legatee,  or  next  of  kin. 

Harper,  J.  This  is  a  case,  both  of  novelty  and  importance,  and  I 
have  considered  it  carefully,  with  reference  to  the  authorities  within  my 
reach.  On  the  part  of  the  plaintiffs,  it  is  contended  that,  under  our  law, 
slaves  being  considered  personal  chattels,  "  to  all  intents,  constructions, 
and  purposes,  whatsoever,"  they  are  absolutely  incapable  of  taking  a  leg- 
acy, and  that  the  bequest  to  them  is  absolutely  void  ;  or  that  if  a  trust 
is  created  in  their  favor,  it  is  incapable  of  being  executed,  and  the  estate 
must  be  distributed  among  the  next  of  kin.  On  the  part  of  the  defend- 
ants, it  is  urged — First,  that  under  the  civil  law,  slaves  have  capacity  to 
take  for  the  benefit  of  the  master,  and  that  this  should  have  much  au- 
thority with  us,  as  the  state  of  slavery  which  existed  under  that  law,  was 
*390l  ^"^^<^oO"s  to  that  which  exists  among  us;  Secondly,*  that  if  we 
adopt  the  rule  of  the  common  law  in  relation  to  villeins,  the  same 
consequence  will  follow ;  they  had  capacity  to  take,  though  liable  to  be 


*u90]  CHARLESTON,  MAKCH,  1835.  299 

divested  of  the  property  by  the  lord :  or,  Thirdly,  that  if  they  are  con- 
sidered incapable  of  taking;,  this  must  be  considered  a  beneficial  bec|ucst 
to  the  executor,  for  his  own  use,  the  testator  having:  intended  him  to  take 
the  property  absolutely  and  dispose  of  it  at  his  pleasure,  relying;  only  on 
his  friendship  and  good  faith  to  dispose  of  it  according  to  his  wishes. 

With  respect  to  the  civil  law,  however  enlightened  and  admir:il>le  a 
system  of  jurisprudence  it  may  be,  it  is  not  our  law,  nor  have  our  Courts 
any  authority  to  declare  it  so.  Our  Legislature  has  adopted  another 
system  of  laws.  Where  our  law  is  obscure  or  doubtful,  it  is  frequently 
of  great  utility  in  explaining  or  determining  it,  more  especially  as  a  great 
portion  of  our  law  was  derived  from  that  source.  But  if  the  common 
law  be  clear,  we  are  not  authorized  to  depart  from  it  because  the  pro- 
visions of  another  system  may  be  better  and  more  suited  to  our  circum- 
stances ;  nor  if  it  be  defective,  are  Courts  authorized  to  supply  the 
deficiency  by  drawing  from  a  foreign  source.  Nor  do  I  think  the  com- 
mon law,  in  relation  to  villenage,  can  govern  in  relation  to  this  matter. 
The  status,  the  entire  civil  and  political  condition  of  the  villein,  was,  in 
almost  every  particular,  different  from  that  of  our  slave.  He  had  a  per- 
fect, civil  and  political  capacity,  and  all  the  rights  of  a  freeman,  against 
every  person  but  his  lord;  and,  with  respect  to  the  lord,  the  relation  was 
very  different  from  that  of  the  slave  to  his  master. — Co.  Lit.  123  b  ;  and 
see  the  note  G.  to  Thomas'  edition,  1  vol.  421. 

Though  Coke  seems  to  refer  the  origin  of  all  servitude  to  captivity  in 
v^QX,  yet  we  know  that  it  often  originated  in  voluntary  contract;  and  I 
apprehend  that  the  essential  distinction  between  villenage  and  slavery,  is, 
that  the  former  was  supposed,  at  least  in  theory  of  law,  to  have  thus 
originated.  I  have  no  doubt  but  that,  very  anciently  among  the  Saxons, 
perfect  slavery  existed,  such  as  now  exists  among  us,  but  this  appears  to 
have  been  much  modified  by  the  feudal  system. — Blackstone  seems  to  fa- 
vor this  supposition — 2  Com.  92.  "Under  tlie  Saxon  government, 
there  were,  as  Sir.  William  Temple  speaks,  a  sort  of  people  in  a  condi- 
tion of  downright  servitude,  used  and  employed  in  the  most  servile  works, 
and  belonging,  both  they,  and  their  children  and  effects,  to  the  lord  of 
the  soil,  like  the  rest  of  the  cattle  or  stock  upon  it.  *These  seem  r*oni 
to  have  been  those  who  held  what  was  called  the  folk-land,  from  •- 
which  they  were  removable  at  the  lord's  pleasure.  On  the  arrival  of  the 
Normans  here,  it  seems  not  improbable  that  they,  who  were  strangers  to 
any  other  than  a  feudal  state,  might  give  some  spai'ks  of  enfranchise- 
ment to  such  wretched  persons  as  fell  to  their  share,  by  admitting  them 
to  the  oath  of  fealty,  which  conferred  a  right  of  protection,  and  raised 
the  tenant  to  a  kind  of  estate,  superior  to  downright  slavery,  but  inferior 
to  every  other  condition."  Reeves,  in  his  History  of  the  Common  Law, 
states  that  the  tenure  of  villenage  was  established  by  the  Normans — 2 
vol.  p.  39,  c.  2.  Mr,  Hallam,  in  his  view  of  the  state  of  lOurope  during 
the  middle  ages,  in  allusion  to  the  ancient  state  of  slavery,  says,  that  "in 
England  it  was  very  common,  even  till  after  the  conquest,  to  export 
slaves  to  Ireland,  till  in  the  reign  of  Henry  II.  the  Irish  came  to  a  non- 
importation agreement,  which  put  a  stop  to  the  practice."  He  has  also 
a  curious  note  on  the  same  subject. 

If  villenage  was  supposed  to  be  a  species  of  tenure,  originating,  as  all 
Other  tenures  did,  in  voluntary  agreement,  the  villein  consenting  to  serve 


300  SOUTH    CAROLINA   EQUITY    REPORTS.  [*391 

in  consideration  of  snpport  and  protection,  will  explain  why  he  was  re- 
garded as  a  freeman  with  respect  to  every  other  person  than  his  lord,  and 
even  with  respect  to  him  had  reserved  some  privileges.  Very  different 
was  the  condition  of  the  captive  taken  in  war.  Lord  Coke  says,  Co. 
Lit.  1,  16  b.,  "  Fiunt  etiam  servi  liberi  homines  capHvitate  de  jure 
gentium,  and  not  by  the  law  of  nature,  as  from  the  time  of  Noah's  flood 
forward,  in  which  time  all  things  were  common  to  all,  and  free  to  all  men 
alike,  and  lived  under  the  law  natural,  and  by  multiplication  of  people, 
and  making  proper  and  private  those  things  that  were  common,  arose 
battles.  And  then  it  was  ordained  by  the  constitution  of  nations,  that 
none  should  kill  another ;  but  that  he  that  was  taken  in  battle,  sliould 
remain  bond  to  his  taker  forever,  and  to  do  with  him  and  all  that  should 
come  of  him,  his  will  and  pleasure,  as  with  his  beast  or  any  other 
chattel,  to  give,  or  to  sell,  or  to  kill,  &c.,  &c."  We  know  that  in  point  of 
fact,  African  slaves  were  generally  captives  taken  in  war.  After  the 
practice  of  enslaving  prisoners  of  war  was  abandoned  in  Europe,  the 
captor  was  supposed  to  have  a  property  in  his  prisoner,  for  the  purpose 
of  enforcing  a  ransom.  At  a  later  period,  prisoners  of  war  were  at  the 
disposal  of  the  State. 

I  think  that  the  true  state  of  the  slave  must  be  ascertained  by 
^^QQI  *i'6ference  to  the  disabilities  of  an  alien  enemy,  in  which  light  the 
■"-^  heathen  were  anciently  regarded  ;  though  certainly  modern  hu- 
manity, the  progress  of  opinion,  and  positive  legislation,  have  greatly 
modified  their  condition.  In  Calvin's  case,  t  Co.  p.  33,  after  speaking 
of  the  condition  of  alien  friends,  it  is  said,  "but  if  this  alien  become  an 
enemy,  (as  all  alien  friends  may,)  then  he  is  utterly  disabled  to  maintain 
any  action,  or  get  anything  within  this  realm.  And  this  is  to  be  under- 
stood of  a  temporary  alien,  that  being  an  enemy  may  be  a  friend,  or  being 
a  friend  may  be  an  enemy.  But  a  perpetual  enemy  (though  there  be  no 
wars  by  fire  and  sword  between  them)  cannot  maintain  any  action,  or  get 
anything  within  this  realm.  All  infidels  are  in  law,  j^erpedn  inimici, 
perpetual  enemies,  for  the  law  presumes  not  that  they  will  be  converted, 
that  being  remota  lootentia,  (a  remote  possibility,)  for  between  them,  as 
with  the  devils,  whose  subjects  they  be,  and  the  Christian,  there  can  be  no 
peace,  for  as  the  Apostle  saith,  2  Cor.  vi.  15,  Quce  auteni  conventio 
Chriati  ad  Belial,  aid  quce  pars  fideli  cum  injideli,  and  the  law  saith, 
Judceo  Christianuni  nullum  serviat  mancijnum,  nefas  enim  est  quern 
Christus  redemit  hlasphemum  Christi  in  servitutis  vinculis  detinere. 
Register,  282.  Infideles  sunt  Christi  et  Ghristianorum  inimici.  And 
herewith  agreeth  the  book  in  12  H.  8,  fol.  4,  where  it  is  hoklen,  the  Pageu 
cannot  have  or  maintain  any  action  at  all.     \_Qucere.'] 

"And  upon  this  ground,  there  is  a  diversity  between  a  conquest  of  the 
kingdom  of  a  Christian  king,  and  the  conquest  of  the  kingdom  of  an 
infidel ;  for  if  a  king  come  to  a  Christian  kingdom  by  conquest,  seeing 
that  he  hath  vitce  et  necis  potestatem,  he  may  at  his  pleasure  alter  and 
change  the  laws  of  that  kingdom,  but  until  he  doth  make  an  alteration  of 
those  laws,  the  ancient  laws  of  that  kingdom  remain.  But  if  a  Christian 
king  should  conquer  a  kingdom  of  an  infidel,  and  bring  them  under  his 
subjugation,  there  ipso  facto  the  laws  of  the  infidel  are  abrogated,  for  that 
they  be  not  only  against  Christianity,  but  against  the  law  of  God  and 
nature  contained  in  the  Decalogue,  and  in  that  case,  until  certain  laws  be 


*392]  CHARLESTON,  MARCH,  1835.  301 

established  amonf?  them,  the  king  by  himself,  and  such  judges  as  he  shall 
appoint,  shall  judge  them  and  their  causes  according  to  natural  e(iuity, 
in  such  sort  as  kings  in  ancient  times  did  with  their  kingdoms  l)efore  any 
certain  municipal  laws  were  given,  as  before  hath  been  said,  that  is  to 
say,  they  have  no  law  but  the  king's  pleasure. 

*I  am  perfectly  aware  that  this  law  has  been  denied,  and  in  r^jjonq 
Omychund  r.  Barker,  1  Atk.  42,  in  the  opinion  of  the  Lord  Chief  L 
Baron,  it  is  said  that  the  enmity  of  heathens  is  to  be  understood  of 
si)iritual  discord  only.  He  refers  to  Salk.  46,  where  is  quoted  from  Sir 
Edward  Littleton's  readings  on  the  statute  27  Ed.  3,  "Turks  and  infidels 
are  not  peiyetui  inimici,  nor  is  there  a  particular  enmity  between  them 
and  us;  but  this  is  a  common  error  founded  on  the  groundless  opinion  of 
Justice  Brooke  ;  for  thongh  there  be  a  difference  between  onr  religion 
and  theirs,  that  does  not  oblige  us  to  be  enemies  of  their  persons  :  they 
are  the  creatures  of  God,  and  of  the  same  kind  that  we  are,  and  it  would 
be  a  sin  in  us  to  hurt  their  persons." 

It  is  not  necessary  to  vindicate  the  humanity  of  Lord  Coke's  doctrine, 
nor  its  conformity  to  the  spirit  of  Christianity ;  but  that  such  was  the  law, 
not  only  of  England,  but  of  all  Europe,  is  supported  by  the  most  noto- 
rious facts,  and  the  practice  not  only  of  the  English  government,  but  of 
all  the  nations  of  Christendom.  Upon  this  natural  enmity  of  the  heathen 
was  founded  the  claim  of  the  Pope,  as  God's  vicegerent  upon  earth,  to 
parcel  out  the  countries  inhabited  by  heathens  among  the  governments 
of  Europe.  This  was  derived  no  doubt  from  the  commands  given  to  the 
Jews  in  the  Old  Testament,  to  drive  out,  extirpate,  and  enslave,  if  they 
could  not  convert,  the  heathen  nations  inhabiting  the  countries  which 
they  (the  Jews)  were  to  inhabit,  and  which  commands  were  supposed  to 
be  of  general  obligation,  and  to  apply  to  Christians.  On  this  principle, 
the  Spaniards  took  possession  of  the  countries  in  America,  and  enslaved 
their  inhabitants.  In  Irving's  Life  of  Columbus,  vol.  2,  book  viii.  chap. 
5,  after  speaking  of  the  first  Indians  sent  as  slaves  by  Columbus  to  Spain, 
the  author  adds,  "the  customs  of  the  times,  however,  must  be  pleaded  in 
his  apology.  The  precedent  had  been  given  long  before,  by  both  Spaniards 
and  Portuguese,  in  their  African  discoveries,  where  the  traffic  in  slaves 
formed  one  of  the  greatest  sources  of  profit.  In  fact  the  practice  had 
been  sanctioned  by  the  highest  authority,  by  that  of  the  Church  itself,  and 
the  most  learned  theologians  had  pronounced  all  barbarous  and  infidel 
nations,  who  shut  their  ears  to  the  truths  of  Christianity,  as  fair  objects  of 
war  and  rapine,  of  captivity  and  slavery."  Bryan  Edwards,  in  his  His- 
tory of  the  *West  Indies,  quotes  the  bull  of  the  Pope,  by  which  r^og^ 
the  traffic  in  African  slaves  was  first  sanctioned.  I  refer  also  to  '- 
Hallara,  to  show  that  the  traffic  in  slaves  was  common  over  the  whole  of 
Europe.  The  practice  of  the  English  government  was  of  the  same  sort. 
They  took  possession  as  owners  of  all  the  countries  discovered  by  thera, 
inhabited  by  heathens;  and  we  know  that  in  all  the  colonies  of  North 
America,  many  of  the  natives  were  enslaved.  On  this  enmity  of  the 
heathen  and  their  destitution  of  all  civil  riglits,  rested  the  king's  right  to 
grant  the  lands  inhabited  by  them.  Though  some  of  the  proprietors  did 
make  treaties  with  the  nations,  and  give  them  a  compensation  to  induce 
them  to  relinquish  the  possession  of  their  lands,  yet  this  was  merely  a 
matter  of  policy  or  humanity;  the  title  of  the  proprietors  was  considered 


302  SOUTH   CAROLINA    EQUITY    REPORTS.  [*394 

perfect  without  this.  Spain,  and  I  believe  France,  to  the  latest  period 
of  their  having  colonies  in  America,  granted  to  individuals  any  portion 
of  the  land  occupied  by  the  natives,  which  it  was  thought  expedient  to 
grant,  without  any  treaty  with  or  compensation  to  them.  But  it  is  un- 
necessary to  multiply  facts  which  are  perfectly  known  to  any  one  having 
the  slightest  acquaintance  with  history.  At  the  very  moment  which  the 
judgment  in  Omychund  i'.  Barker  was  pronounced,  and  that  in  Ilarakis- 
senseat  v.  Barker,  1  Atk.  51,  where  the  plea  of  alien  infidel  was  summarily 
overruled  by  Lord  Ilardwicke,  the  English  government  was  notoriously 
acting  on  tlie  princii)les  of  the  doctrine  laid  down  by  Lord  Coke,  through 
the  whole  of  its  American  colonies.  The  lawfulness  of  the  African  slave 
trade,  which  was  then  and  long  afterwards  protected  and  encouraged  by 
the  government,  was  a  consequence  of  the  same  doctrine.  I  apprehend 
that  the  decisions  in  the  cases  to  which  I  have  referred,  and  likewise  that 
in  Somerset's  case,  notwithstanding  the  ingenious  argument  of  Mr.  Har- 
grave,  were  founded  rather  upon  a  consideration  of  what  was  due  to 
modern  civilization  and  humanity,  than  upon  the  ancient  law  of  England. 
Sir  Thomas  Grantham's  case,  3  Mod.  120,  sustains  these  views,  where  an 
Indian  had  been  exhibited  as  a  show  for  profit.  Upon  his  being  baptized, 
a  hoinine  replegiando  was  brought;  and  in  Wells  u.  Williams,  1  Lord 
Raym.  282,  it  seems  to  be  admitted  that  the  law  in  relation  to  infidels 
had  been  changed. 

The  Court  said,  "that  the  necessity  of  trade  has  mollified  the  too 
^oqc-j  rigorous  rules  of  the  old  law  in  their  restraint  and  *discourage- 
-^  ment  of  aliens.  A  Jew  may  sue  at  this  day,  but  heretofore  he 
could  not,  for  then  they  were  looked  upon  as  enemies.  But  now  com- 
merce has  taught  the  world  more  humanity  :  and  therefore  an  alien  enemy 
commorant  here  by  license  of  the  king,  and  under  his  protection,  may 
maintain  debt  upon  a  bond,  though  he  did  not  come  with  safe-conduct." 
I  by  no  means  contend  that  our  law  now  is  generally  as  laid  down  by 
Coke ;  it  has  been  altered  by  opinion,  by  the  decisions  of  the  Courts,  and 
by  legislation.  I  suppose  that  an  alien  enemy  now  permitted  to  reside 
in  the  country,  would  be  considered  under  a  safe-coucluct  and  protected 
in  person  and  property.  I  suppose  that  it  would  be  unlawful  to  enslave, 
and  might  be  murder  to  kill  one  of  our  native  Indians;  but  in  considering 
the  status  of  our  slaves,  it  is  necessary  to  refer  to  the  origin  of  our  rela- 
tion to  them.  It  is  plain  that  all  our  practice  and  legislation  respecting 
them  has  had  reference  to  their  ancient  dalus. 

First,  the  Act  of  1711  supposes  the  disabilities  of  slaves  to  be  founded 
on  their  infidelity,  and  it  was  thought  necessary  to  provide  that  by  being 
baptized  they  should  not  be  thereljy  emancipated,  but  continue  slaves  as 
before.  The  Act  of  1740  declares  that  they  shall  be  reputed  and  adjudged 
in  law,  to  be  chattels  personal  in  the  hands  of  their  owners  and  possessors, 
and  their  executors,  "  administrators  and  assigns,  to  all  intents,  purposes, 
and  constructions  whatsoever." 

On  the  notion  of  their  being  public  enemies,  who  could  have  no  redress 
for  any  personal  injury,  it  provides  a  penalty  for  any  person  who  shall 
beat,  bruise,  wound  or  maim  a  slave,  and  likewise  for  the  payment  of 
damages  to  his  master. 

It  provides  for  punishing  the  murder  of  a  slave,  in  terms  which  very 


*395]  CHARLESTON,    MARCH,    1835.  303 

clearly  indicate  that  without  such  provision  it  would  be  subject  to  no 
puuishnieiit. 

On  the  same  notion  of  their  being  public  enemies,  not  responsible  to 
the  civil  laws,  it  provides  generally,  that  a  slave  committing  an  act  which 
would  be  felony  in  a  free  white  person,  shall  sutler  the  same  punishment. 

It  does  not  disable  slaves  from  giving  testimony  against  a  white  person, 
but  taking  their  incompetency  for  granted,  it  positively  enables  them  to 
give  testimony  against  other  slaves.  These  views  may  perhaps  help  to 
explain  some  of  the  difficulties  and  anomalies  *vvhich  have  been  ^:^oQc 
supposed  to  exist  in  the  condition  of  this  class  of  persons.  They  ^  '^ 
may  furnish  an  answer  to  the  difficulty  suggested  in  argument,  that  a 
slave,  for  many  purposes,  may  be  the  agent  of  his  master,  which  could 
not  be  if  he  were  regarded  as  a  chattel  to  all  intents  and  purposes.  He 
is  an  intelligent  human  being,  through  whom  the  master's  mind  may  be 
conveyed. — Through  him  the  master  may  propose  or  accept  a  contract, 
being  capable  of  acting  as  his  master's  agent.  This  explains  the  condi- 
tion of  our  Indians  in  many  respects.  Laws  are  made  for  their  protection 
out  of  humanity ;  they  are  treated  with,  and  compensation  is  made  to 
them  for  such  lands  as  they  may  surrender  to  the  use  of  the  whites  ;  but 
in  theory  of  law  they  are  regarded  as  having  no  title  to  their  lands,  and 
only  occupying  them  at  sufferance.  It  explains,  too,  why,  though  born 
and  living  under  our  territory,  they  may  make  war  upon  the  United  States 
without  being  guilty  of  treason.  Being  regarded  as  public  enemies,  they 
owe  no  allegiance,  and  are  therefore  incapable  of  treason. 

The  difficulty  suggested  in  case  a  slave  finds  a  jewel  or  any  other 
article  of  value,  that  it  might  be  seized  by  any  person  who  should  find  it 
in  his  possession  as  if  it  should  be  found  hanging  in  the  fleece  of  a  sheep, 
does  not,  I  think,  exist.  He  is  an  intelligent  being,  capable  of  taking 
and  intending  possession.  The  law,  however,  declares  him  a  chattel  per- 
sonal, which  is  supposed  to  attend  the  person  of  the  owner.  His  posses- 
sion is,  therefore,  referred  to  the  master,  and  on  that  possession  the  master 
might  maintain  trover  against  a  stranger  who  should  take  an  article  so 
found  from  his  slave.  So,  if  land  were  conveyed  to  a  slave,  the  master, 
by  parity  of  reasoning,  would  be  seized  of  that  land — (an  alien  enemy  is 
not  disabled  to  take  land  by  purchase) — being  declared  by  statute  a 
chattel  personal  in  his  master's  possession,  his  seizure  or  possession  must 
be  referred  to  the  master. 

It  would  seem  to  follow,  however,  from  these  principles,  that  in  case 
of  land  conveyed  to  a  slave,  the  master  would  not  take  for  himself,  but 
only  until  office  found  for  the  State.  I  know  not  how  to  arrive  at  any 
other  result.  An  alien  cannot  hold  land  ;  nor  could  he  grant,  convey  or 
lease  the  land. — Co.  Lit.  42  b.  Com.  Dig.  Tit.  Alien  C.  4.  So  it  is  of 
alien  enemy's  choses  in  action.  "Xo  alien  enemy  shall  maintain  any 
action,  real,  personal  or  mixed."  Co.  Lit.  129,  a  Com.  Dig.  Tit.  Alien. 
C  5  "  So  if  an  alien  enemy  *take  a  bond,  the  king  shall  have  r^on'r 
it.'^ — Com.  Dig.  Tit.  Alien,  C.  2.  "  Choses  in  action  belonging  ^ 
to  alien  enemy  are  forfeited  to  the  crown,  but  there  must  be  an  in- 
quisition to  intitle ;  and  a  peace  before  the  inquisition,  discharges  the 
causes  of  forfeiture."  In  the  case  of  ininiicus  perpetuus,  however,, 
there  can  be  no  peace.  An  alien  enemy  is  not  disabled  to  take  lands, 
though  he  holds  only  until  office  found.     He  is  not  disabled  to  take 


304  SOUTH    CAROLINA    EQUITY   REPORTS.  [*397 

personal  property  in  possession,  but  there  is  no  provision  by  law  for  an 
inquisition  by  which  this  shall  be  vested  in  the  State.  By  the  old  law, 
an  alien  enemy  had  no  civil  rights,  and  if  any  one  had  taken  away  pro- 
perty found  in  his  possession,  there  would  have  been  no  remedy.  He 
could  maintain  no  action.  But,  as  I  have  said,  the  possession  of  the 
slave  is  the  possession  of  the  master.  If  one  having  good  title  to  per- 
sonal property,  should  transfer  it  into  the  possession  of  a  slave,  this 
transfer  would  not  be  void :  the  title  would  be  changed,  but  the  title  and 
possession  must  be  referred  to  the  master.  Whatever  chattels  the  slave 
acquires,  he  acquires  for  his  master,  and  the  master  might  maintain  an 
action  for  them  in  the  hands  of  a  stranger.  But  an  executory  contract 
made  with  a  slave  cannot  be  enforced.  No  action  could  be  maintained  on 
a  bond  or  note  given  to  a  slave.  Neither  master  nor  slave  could  maintain 
an  action  against  the  executor  for  the  legacy  given  in  this  case,  and  it 
should  seem  that  it  might  be  escheated  to  the  State  in  the  hands  of  the 
executor. 

It  remains  to  inquire  whether  this  can  be  regarded  as  a  personal 
bequest  to  the  executor,  giving  the  property  beneficially  to  him,  and  only 
depending  on  his  friendship  and  good  faith  to  deal  with  it  as  the  testator 
recommends.  I  have  no  doubt  but  that,  as  observed  by  the  Chancellor 
in  his  decree,  there  might  be  a  legacy  to  support  a  favorite  horse.  This, 
however,  would  not  be  a  trust  for  the  horse,  who  is  incapable  of  being  a 
cestui  que  trust.  It  would,  I  apprehend,  according  to  the  terms  of  it,  be 
either  an  absolute  bequest  to  the  legatee,  depending  on  his  good  faith  to 
carry  into  effect  the  testator's  wishes,  or  it  would  be  regarded  as  a  con- 
dition annexed  to  the  bequest.  Though  such  legacies  must  have  often 
occurred  and  are  spoken  of  as  familiar — "  Die,  and  endow  a  college  or  a 
cat," — yet  in  the  examination  I  have  been  able  to  make,  I  have  found  no 
ease  of  such  an  one.  It  would,  I  suppose,  be  similar  to  the  class  of 
*QqQ-]  legacies  spoken  of  by  Doraat,  2  vol.  book  3,  *Tit.  1,  Sec.  8,  vii. 
-^  Treating  of  conditions  and  charges  annexed  to  a  legacy,  he  says, 
"  And  in  fine  it  is  said  of  a  legacy  destined  for  some  purchase  or  some 
work,  that  it  is  left  with  this  charge  or  upon  this  condition,  that  the  said 
purchase  or  work  be  made  or  done  by  him  who  is  charged  with  it."  He 
observes,  that  "it  depends  on  the  terms  of  the  bequest,  whether  the 
charge  does  or  does  not  amount  to  a  condition;"  and  in  the  same  section, 
XXV.  he  adds,  that  in. such  cases  "Provision  ought  to  be  made  for  the 
security  of  the  person  interested,  according  to  the  nature  of  the  condition, 
whether  it  be  by  the  bare  submission  of  the  person  on  whom  the  cC)ndition 
is  imposed,  or  otherwise,  according  to  the  circumstances."  Perhaps  in 
case  of  such  a  condition,  our  Courts  might .  require  security  for  the  per- 
formance of  it,  as  in  Aston  v.  Aston,  2  Yern.  452,  where  a  legacy  was 
given  on  a  condition  subsequent,  the  Court  required  security  to  refund, 
in  case  of  the  condition  broken.  I  suppose,  if  a  testator  should  give  a 
slave  bona  fide  and  beneficially,  to  his  legatee,  he  might  give  something 
more  to  add  to  his  comforts  or  to  maintain  him,  if  he  were  past  labor. 
Let  us  see  if  this  was  a  legacy  of  this  character.  It  is  to  be  observed 
that  there  is  no  direct  bequest  to  the  executor  at  all.  The  will  first,  after 
■legacies,  gives  the  whole  of  the  estate  directly  to  the  two  children,  who 
are  slaves.  Then  follows  the  direction  that  the  real  estate  shall  be  sold, 
and  the  proceeds  invested  in  stock,  the  interest  to  be  applied  to  the  sup- 


*398]  CHARLESTON,  MARCH,  1835.  305 

port  of  the  children,  at  the  discretion  of  his  executor,  wlioni  he  ni)iioiMts 
their  g-uardian.  Is  this  a  beqnest  to  the  executor  in  any  way  ?  ^Ve  may 
infer  that  the  stock  was  to  be  purchased  in  the  name  of  the  guardian,  hy 
conjecturing-  tliat  the  testator  supposed  that  the  slaves  could  not  hold  in 
their  own  names.  But  this  is  not  the  effect  of  the  terms  of  the  will.  He 
first  gives  them  the  whole  estate  directly,  and  then  directs  the  proceeds 
of  the  real  estate  to  be  invested.  The  natural  construction  is,  tliat  it  is 
to  be  invested  in  the  legatees'  names;  that  it  is  ai)plied  at  the  dist-reliun 
of  the  executor — that  he  is  ajipoiuted  guardian,  can  make  no  dill'erence. 
If  the  legatees  were  free  white  children,  there  would  be  no  doubt  at  all 
that  it  would  be  a  direct  bequest  to  them.  Tlie  testator  knew  that 
guardians  were  appointed  for  free  negroes,  and  probably  su])poscd  that 
our  laws  regarded  such  persons  as  being  in  a  state  of  perpetual  minority. 
We  cannot  conjecture  that  the  testator  supposed  them  to  be  incapable  of 
*taking  directly.  Only  the  proceeds  of  the  real  estate  are  directed  r^oqq 
to  be  invested.  There  is  no  disposition  of  anything  else  but  the  '- 
direct  bequest  to  them.  The  personal  estate  is  said  to  be  very  trifling ; 
but  if  there  be  anything  at  all,  or  if  the  testator  supposed  there  was  any- 
thing, it  rebuts  the  conjecture  that  he  supposed  them  to  be  incapable  of 
taking  directly.  Then  follows  the  direction  to  purchase  the  son,  John. 
Here,  I  suppose  that  the  purchase  was  intended  to  be  made,  and  the  title 
taken,  in  the  name  of  the  executor.  But  it  is  plain  that  he  was  to  ])ur- 
chase  as  executor,  and  that  no  personal  benefit  to  him  was  intended. 
Purchased  with  the  funds  of  the  estate,  he  would  become  part  of  the  estate. 
But  the  whole  estate  is  given  to  the  children.  The  mcaniiig  of  this  is,  that 
John  should  be  held  by  the  executor  as  a  slave,  and  be  under  his  control ; 
but  that  if  he  labored,  he  should  enjoy  the  proceeds  of  his  own  labor.  He 
is  to  be  held  by  the  executor  in  trust  for  himself;  he  is  to  have  the  ?/.se  of 
himself.  It  is  an  attempt  in  effect  to  evade  the  law  of  the  State  forbid- 
ding emancipation,  a  law,  I  am  persuaded,  however  harsh  it  may  ai)pear 
to  those  who  have  no  opportunity  of  forming  a  judgment  on  the  sul)jcct, 
is  founded  on  principles  of  true  humanity  as  well  as  just  policy.  With 
respect  to  the  rest  of  the  estate,  as  I  have  observed,  there  is  no  trust  at 
all.  With  respect  to  John,  there  is  a  trust  for  his  own  benefit.  In 
Morrice  v.  the  Bishop  of  Durham,  9  Yes.  399,  10  Ves.  522,  where  a 
legacy  was  given  to  the  defendant,  in  trust  to  be  disposed  of  "  to  such 
objects  of  benevolence  and  liberality,''  as  he  (the  Bishop  of  Durham) 
should  most  approve  of,  it  was  held  that  the  Bishop  could  not  take  for 
his  own  use,  and  that  as  the  trust  was  too  indelinite  to  be  executed  by 
the  Court,  a  trust  resulted  for  the  next  of  kin.  The  rule  is  laid  down  by 
Lord  Eldon,  10  Yes.  536.  "I  understand  a  doubt  has  been  raised  in 
the  discussion  of  some  question,  bearing  analogy  to  this,  in  another 
Court ;  how  far  it  is  competent  to  a  testator  to  give  to  his  friend  his 
personal  estate,  to  apply  it  to  such  purposes  of  bounty,  not  arising  to 
trust,  as  the  testator  himself  would  have  been  likely  to  a})ply  it  to.  That 
question,  as  far  as  thih  Court  has  to  do  with  it,  depends  altogether  njion 
this  :  if  the  testator  meant  to  create  a  trust,  and  not  to  make  an  absolute 
gift,  but  if  the  trust  is  ineffectually  created,  is  not  ex|)ressed  at  all,  or  fails, 
the  next  of  kin  take.  On  the  other  hand,  if  the  party  is  to  take  himself, 
it  must  be  on  this  ground,  according  to  the  authorities  ;  *that  the  r^.^n 
testator  did  not  in  earnest  create  a  trust,  but  intended  a  gift  to  L 


306  SOUTH    CAROLINA   EQUITY    REPORTS.  [*400 

that  person  for  his  own  use  and  benefit ;  for  if  he  was  intended  to  have  it 
entirely  in  his  own  power  and  discretion,  whether  to  make  the  application 
or  not,  it  is  absolutely  given."  And  again,  p.  537,  "If  he  gives  upon 
trusts  hereafter  to  be  declared,  it  might  perhaps  have  been  as  well  to  have 
held,  that  if  he  did  not  declare  any  trust,  the  person  to  whom  the  pro- 
perty was  given  should  take  it.  If  he  says  he  gives  in  trust,  and  stops 
there,  meaning  to  make  a  codicil  or  an  addition  to  his  will,  or  where  he 
gives  upon  trusts  which  fail,  or  are  ineffectually  expressed,  in  all  those 
cases,  the  Court  has  said,  if  upon  the  face  of  the  will  there  is  declaration 
plain,  that  the  person  to  whom  the  property  is  given,  is  to  take  it  in 
trust ;  and  though  the  trust  is  not  declared  or  is  ineifectually  declared,  or 
become  incapable  of  taking  effect,  the  party  taking  shall  be  a  trustee  ;  if 
not  for  those  who  were  to  take  under  the  will,  for  those  who  take  under 
the  disposition  of  the  law."  In  Gibbs  v.  Rurasey,  2  Yes  &  B.  294, 
after  giving  part  of  her  estate  to  trustees,  upon  certain  specific  trusts,  the 
testatrix  gives  the  residue  to  the  same  trustees,  (by  name,)  "  to  be  dis- 
posed of  unto  such  person  or  persons,  and  in  such  sum  or  sums  of  money 
as  they  in  their  discretion  may  think  proper  and  expedient."  In  that 
case,  from  the  uncontrolled  power  of  disposition  given  to  the  trustees,  it 
was  inferred  that  the  intention  w^as  to  give  to  the  trustees  beneficially  for 
themselves.  But  in  all  the  cases  on  the  subject,  the  question  is  of  the 
intention  to  give  to  the  trustee  for  himself.  But,  in  the  case  before  us, 
there  can  be  no  doubt  of  the  intention,  that  no  benefit  was  intended  to 
the  executor.  There  is  declaration  plain  on  the  face  of  the  will,  that  the 
slaves  were  the  only  objects  intended  to  be  benefitted. 

From  the  views  I  have  taken,  however,  the  plaintiff's  are  not  entitled. 
The  bequest  to  the  slaves  is  not  void,  on  the  principles  before  examined. 
A  chose  in  action  given  to  alien  enemy  is  not  void,  though  while  alien 
enemy  he  can  maintain  no  action  upon  it.  A  trust  created  in  favor  of  an 
alien  enemy,  is  not  incapable  of  being  executed.  "  If  an  alien  enemy 
*am  1  Pi^^chase  a  copyhold  or  land  in  *the  name  of  another,  in  trust  for 
-'  himself  and  his  heirs,  the  king  shall  have  it."  "But  if  an  alien 
purchase  in  the  name  of  a  trustee,  the  king  cannot  be  entitled  by  inquisi- 
tion, for  the  estate  at  law  is  in  the  trustee,  not  in  the  alien.  But  he  must 
sue  in  Chancery  to  have  the  trust  executed."  Com.  Dig.  Tit.  Alien.  C 
3.  I  do  not  say  what  the  eff"ect  would  be  if  the  executor  should  think 
proper,  of  his  own  accord,  to  pay  over  the  legacy  to  the  slaves,  or  their 
master.  But  remaining  in  his  hands,  it  is  subject  to  the  claim  of  the 
State. 

The  Chancellor's  decree  must  be  therefore  affirmed,  and  the  bill  dis- 
missed, but  without  costs. 

Johnson  and  O'JS'eall,  Js.,  concurred. 


*401]  COLUMBIA,    DECEMBER,    1^35.  307 

[This  case  should  have  preceded  the  last,  but  was  accidentally  mis- 
placed.] 

Stallings  and  Wife  u.    Jacob    Fore.man,   Administrator  of  Isaac 

Foreman. 

An  administrator  selling  the  personal  estate  of  his  intestate  umler  the  order  of  the 
Ortli  lary,  is  allowed  to  become  a  purchaser,  when  I  e  sells  fairly  and  pnys  tlie  full 
value.  Therefore  a  purchase  of  a  slave  by  an  administrator  at  his  own  sale,  under 
an  order  of  the  Ordinary  at  a  fair  price  and  without  fraud,  was  su.-tained  aj^ainst 
the  bill  of  the  distributees  seeking  to  set  it  aside    [*405] 

The  cases  in  tliis  State,  as  to  purchases  by  executors,  administrators  and  other 
trustees,  at  their  own  sales,  reviewed.  [*40.5] 

On  a  review  of  the  rights  and  liabilities  of  executors  and  administrators  at  common 
law  and  under  our  Acts  of  Assembly,  it  seems  they  may  acquire  their  testator's 
or  intestate's  property,  provided  the  sale  is  fairly  made  under  the  authority  of  the 
will  or  the  order  of  the  Ordinary,  and  that  the  price  is  'he  true  value  of  the 
property.  [*408] 

The  reason  of  the  rule  which  avoids  the  purchases  at  his'own  sale  of  a  trustee  to 
sell,  does  not  apply  to  executors  and  administrators  ;  and  those  entitled  by  law 
to  administration, would  olten  decline  it  if  prevented  from  buying    [*]()'.»] 

Barnwell — February,  1835. 

De  Saussure,  Chancellor.  The  bill  is  filed  against  the  administrator, 
for  an  account  and  settlement  of  the  estate  of  the  intestate,  Isaac  Fore- 
man. The  shigle  point  made  and  argued  in  this  case,  is  whether  the 
purchase  of  a  slave,  named  August,  made  by  the  defendant,  Jacob  Fore- 
man, administrator  of  Isaac  Foreman,  at  a  sale  of  pro})erty  of  the  estate 
of  his  intestate,  authorized  by  the  Ordinary  at  the  instance  of  the  ad- 
ministrator, shall  be  set  aside  at  the  instance  of  the  plaintiffs,  who  are  enti- 
tled to  a  distributive  share  of  the  estate.  It  appears  that  the  slave, 
August,  was,  at  the  time  of  the  purchase  by  the  defendant  at  his  sale  as 
administrator,  a  boy  somewhere  about  twelve  years  of  age,  and  capalde  of 
being  a  plough-boy.  He  has  since  grown  up,  and  is  a  very  valuable  ser- 
vant, and  his  hire  for  his  annual  services,  put  by  the  testimony  at  a  high 
rate,  is  far  indeed  beyond  the  amount  of  the  annual  interest  of  the  price 
at  which  he  was  purchased  by  the  defendant ;  *not  less,  indeed,  r:(cj^Ac> 
than  three  or  four  times  the  amount  of  the  interest.  The  defend-  '- 
ant  contends  that  the  sale  was  authorized  by  the  Ordinary,  and  therefore 
regular  and  good  ;  that  it  was  fairly  conducted,  and  that  he  bid  a  fair 
price,  viz.:  $350,  which  was  not  only  the  just  value,  but  a  very  high  price; 
that  he  was  at  liberty  to  purchase  at  the  sale,  and  that  he  is  entitled  to 
hold  the  said  slave  under  his  purchase,  and  to  account  accordingly  for  the 
price  and  interest  thereon.  It  is  admitted,  on  the  part  of  the  plaintiffs, 
that  the  sale  was  authorized  by  the  Ordinary;  but  it  is  contended  that 
the  sale  was  unnecessary,  and  that  the  purchase  of  the  slave,  August,  by 
the  defendant,  the  administrator,  Jacob  Foreman,  at  his  own  sale,  was 
void,  and  vested  no  property  in  the  defendant,  who  is  required  to  deliver 
up  the  slave,  and  to  account  for  his  hire.  Tiiat  the  sale  was  authorized 
by  the  Ordinary,  who  has  the  power,  is  sufficient  for  this  Court,  unless 
fraud  be  shown  in  procuring  the  order.  There  is  nothing  in  the  evidence 
to  lead  the  mind  to  the  belief  that  the  sale  was  unfairly  conducted,  or  that 
any  advantage  was  taken  by  the  defendant  to  obtain  the  said  slave,  at  a 
price  below  his  full  value;  and  I  think  that  the  weight  of  evidence  esta- 
blishes that  the  sum  of  $350,  which  was  bid  by  the  defendant,  was  not  an 


308  SOUTH    CAROLINA    EQUITY    REPORTS.  [*402 

unfair  or  short  price  for  a  boy  of  about  twelve  years  of  age.  Tlie  question, 
then,  is  really  reduced  to  the  simple  point,  whether  a  purchase,  made 
under  such  circumstances,  should  be  sustained  by  the  Court,  for  the 
administrator  who  purchased ;  or  set  aside,  at  the  instance  of  the  plain- 
tiffs, who  are  entitled  to  distributive  shares  of  the  estate.  It  is  unneces- 
sary to  go  into  the  history  of  the  changes  which  the  doctrine  has  under- 
gone of  the  authority  of  executors  and  administrators,  to  sell  the  property 
of  the  estate  in  their  hands,  at  their  discretion,  or  to  take  it  at  their  ap- 
praisement. These  powers  have  been  controlled  and  regulated  by  statutes 
founded  on  experience  of  the  danger  of  trusting  such  powers  in  the  hands 
of  men,  who  might  be  tempted  to  abuse  them  for  their  own  advantage,  to 
the  prejudice  of  persons  who  are  generally  widows  or  minors,  and  incapable 
of  taking  care  of  their  interests.  The  authority  to  take  the  estate  at  an  ap- 
praisement has  been  abolished,  and  the  power  to  sell  has  been  taken  from 
executors  and  administrators,  and  transferred  to  the  Ordinary  ;  a  confiden- 
tial officer  of  the  government,  who  may  grant  or  refuse  the  authority  to  sell, 
according  to  his  judgment  of  the  propriety  of  the  application  of  the  execu- 
jj.  -,  tor  or  administrator.  Notwithstanding*  these  wise  provisions  of 
-^  the  statute,  it  was  found  that  abuses  existed  ;  and  that  some  execu- 
tors and  administrators  and  trustees,  availed  themselves  of  the  advantages 
of  their  position  of  sellers,  with  the  power  to  manage  and  control  the 
sales,  to  become  purchasers  at  their  own  sales,  at  a  price  below  the  real 
value  of  the  property  put  up  for  sale.  To  check  these  abuses,  the  Courts 
have  been  obliged  to  interfere,  and  in  many  cases  to  set  aside  purchases 
thus  made,  in  order  to  protect  the  interests  of  women  and  children.  This 
has  given  rise  to  a  good  deal  of  controversy,  as  to  what  cases  the  Court 
would  interfere  in.  It  has  been  held  that  the  only  safe  rule  would  be  to 
deny  altogether  the  right  of  executors,  administrators  and  trustees,  to 
become  purchasers  under  any  circumstances,  and  to  declare  them  all  void. 
This,  however,  has  been  considered  too  strong  a  course,  and  even  injurious 
to  the  estates,  as  it  might  prevent  these  functionaries  from  interposing 
their  bids  to  prevent  low  sales  to  other  persons,  and  to  diminish  the  circle 
of  competition.  The  decided  cases  fluctuated  for  some  time.  There  was 
great  uncertainty  and  division  of  opinion  among  the  judges,  as  may  be 
seen  in  the  cases  of  Drayton  v.  Drayton,  1  Eq.  Rep.  557,  and  M'Guire  v. 
M'Gowen,  4  Eq.  Rep.  486.  Many  other  decisions  followed,  which  were 
made  to  turn  mainly  on  the  ground  of  fairness  in  obtaining  authority  to 
sell,  correctness  in  conducting  the  sales,  and  fulness  of  prices  bid  by  the 
executors  and  administrators.  The  abuses  were  so  flagrant  and  frequent, 
that  there  was  a  strong  disposition  to  declare  such  purchases  void.  But 
the  opinion  prevailed  that  they  should  be  held  to  be  only  voidable ;  de- 
pending on  the  circumstances  of  fairness  and  propriety  and  price,  in  each 
particular  case.  This  was  a  pretty  good  check,  but  not  entirely  effectual, 
because  in  many  cases  it  was  difficult  to  detect  and  bring  to  light  the  arts 
and  contrivances  by  which  sales  were  made  and  purchases  at  low  prices 
or  doubtful  prices  were  obtained.  The  later  decisions  appear  to  me  to 
have  settled  down  on  the  proper  ground.  That  purchases  made  by  execu- 
tors, administrators  and  trustees,  at  their  own  sales,  were  not  absolutely 
void,  but  voidable — for  impositions  in  obtaining  orders  for  sales  without 
necessity,  by  misrepresentation  of  the  situation  of  the  estate,  or  fraud 
and  contrivance  in  conducting  the  sale,  or  management  in  obtaining  the 


*403]  COLUMBIA,    DECEMBER,    1835.  300 

property  at  low  and  inadeqnntc  prices.  And  fiiiully,  one  other  protec- 
tion was  added,  that  the  persons  interested,  who  thoiif-'lit  thcinsclvcs 
atrgrieved  liy  the  purchases  l)y  executors,  &c.,  *should  he  at  liberty  r*  jn  , 
to  avoid  the  sale  by  dissenting  from  the  same,  unless  they  Jiave  L  ■*"•* 
done  some  positive  act  by  which  they  have  given  up  or  abandoned  their 
right. 

This  renders  the  guard  against  abuses  complete ;  for  persons  in  fidu- 
ciary situations  will  not  be  apt  to  make  purchases  at  low  rates,  or  even 
moderate  prices,  when  they  know  that,  if  ultimately  the  purchase  turned 
out  advantageously  for  them,  they  would  assuredly  be  avoided  ;  but  if 
disadvantageonsly,  they  would  remain  bound.  In  the  case  of  Edmonds 
and  others  l'.  Crenshaw  &  M'Morris,  1  M'C.  Ch.  Rep  252,  2G0,  it  was 
laid  down  broadly,  that  the  executor's  purchase  at  his  own  sale  was  void, 
and  the  slave  purchased  was  still  the  property  of  the  estate. — See  also  2 
John.  Ch.  C.  252.  In  Wiggin's  case,  1  Hill's  Ch.  Rep.  353-4,  decided 
1833,  Chancellor  Johnston  stated  the  rule  to  be,  "that  according  to  the 
decided  cases,  a  trustee  to  sell  cannot  purchase  whether  he  is  a  party  in- 
terested or  not.  If  he  sells,  thts  sale  will  be  set  aside,  or  he  will  be  held 
to  the  purchase  as  of  course,  at  the  option  of  the  parties  interested  ;  and 
as  the  rule  forbidding  such  purchases  is  one  of  policy  to  ])revent  fraud, 
when  there  is  no  possibility  of  proving  it,  the  inquiry  is  never  made 
whether  the  sale  is  or  is  not  advantageous."  This  was  putting  the  decision 
on  the  broadest  ground.  Judge  Harper,  who  delivered  the  unanimous 
opinion  of  the  Court  of  Appeals,  concurred  fully  with  the  Chancellor  in 
his  expressions.  It  is  true,  that  in  the  Court  of  law  the  doctrine  has  not 
been  carried  so  far,  or  has  been  somewhat  modified  ;  yet  substantially  it 
has  been  supported  by  the  decisions.  In  the  case  of  Trimmier  v.  Trail, 
2  Bail.  Rep.  480,  decided  in  1831,  the  Court  decided  that  an  adminis- 
trator, having  an  interest  in  the  estate,  may  purchase  to  the  extent  of  his 
interest ;  and  a  purchase,  by  an  administrator  not  entitled  to  a  share  of 
the  estate,  is  not  necessarily  void,  but  may  be  confirmed  or  set  aside  at 
the  election  of  the  parties  interested  in  the  estate.  These  doctrines  ap- 
ply to  all  persons  acting  in  fiduciary  stations,  executors  and  administra- 
tors, as  well  as  those  more  technically  called  trustees.  In  this  case, 
therefore,  although  the  purchase  made  by  the  administrator,  who  had  no 
interest  in  the  estate,  does  not  appear  to  have  been  made  fraudulently  or 
at  a  low  price,  I  feel  bound  to  declare  it  null  and  void,  because  the  plain- 
tiffs entitled  as  distributees,  have  by  their  bill  signified  their  option  that 
the  sale  should  be  set  aside. 

It  is  therefore  ordered  and  decreed  that  the  purchase  be  set  aside  and 
*avoided  ;  and  that  the  defendant  should  deliver  up  the  slave  in  r:(c  <  ac 
question,  named  August,  for  distribution,  and  that  in  accounting  •- 
before  the  Commissioner,  as  he  is  hereby  ordered  to  do,  for  the  rest  of 
the  estate,  he  account  for  the  hire  and  labor  of  the  said  slave. 

Patterson,  for  the  appellan.t. 

Elmore,  contra. 

O'Neall,  J.     The  naked  question  in  this  case  is,  whether  an  adminis- 
trator, selling  the  personal  estate  of  his  intestate,  under  the  order  of  the 
Ordinary,  can  be  allowed  to  become  the  purchaser,   when  he  sells  fairly 
Vol.  I.— 43 


310  SOUTH    CAROLINA    EQUITY    REPORTS.  [*J:05 

and  pays  the  fall  value  ?  I  think  he  can  ;  and  in  this  respect  executors 
and  administrators  constitute  an  exception  to  the  rule  that  "  a  trustee  to 
sell  cannot  purchase." 

On  tracing  this  question  through  the  various  cases  decided,  it  will  be 
found  that  no  decision  against  this  position  has  been  made.     In  the 
earliest  case  which  can  be  found,- that  of  Drayton  v.  Drayton,  1  Eq.  Rep. 
557,  567,   the  Chancellors,   Matthews  and   Rutledge,   decided  the  very 
point,  in  exact  conformity  to  what  I  conceive  to  be  both  law  and  equity. 
Speaking  of  a  purchase  made  by  Gr.  Drayton,   one  of  the  testator's  ex- 
ecutors, at  the  sale  of  his  estate,  they  say  : — "  As  to  G.    Drayton's  pur- 
chase at  the  sale  of  the  testator's  estate,  we  consider  it  in  the  same  light 
as  that  of  any  other  individual ;  there  is  no  law  which  prohibits  an  ex- 
ecutor purchasing  (ivith out  fraud)  any  property  of  his  testator,   at 
open  aiid  jniblic  sale. ^^     This  was  in  1797,   and  until  M'Gruire  u   Mc- 
Gowen,  4  Eq.  Rep.  486,  (in  1814)  the  country  remained  quietly  under 
the  rule  settled  by  the  case  of  Drayton  v.    Drayton.     In  that  case  the 
precise  question  now  before  the  Court  did  not  arise ;  the  defendant  was 
the  husband  of  the  administratrix,  and  guardian  ad  litem  of  the  minors 
in  a  proceeding  in  jiartition  in  the  Common  Pleas,  in  which  the  land  of 
the  intestate  was  ordered  to  be  sold,  and  of  which,   at  the  sale  made  in 
pursuance  of  the  said  order,  he  became  the  purchaser.     It  was  held  by  a 
majority  of  the  Court,  that  his  purchase  was  valid.     In  1817,  in  the  case 
of  Perry  v.  Dixon,  reported  in  a  note,  4  Eq.  Rep.  504,  the  question  was 
made,  whether  an  executor's  purchase,  at  his  own  sale,  was  good  ?     The 
Court,  without  adverting  to  Drayton  v.  Drayton,  which  was  a  direct  de- 
cision of  the  point  arising  in  the  case,  and  thus  constituted  a  rule  (as  I 
*inf  1  ^^^  conceive)  *for  their  government,  decided  the  case  as  one  of 
-^  novel  impression.     Chancellor  Waties,  holding  that  an  executor, 
as  a  trustee  to  sell,  could  not  be  allowed  to  purchase  at  his  own  sale, 
Chancellor  De  Saussure  said   "he  was  not  prepared  to  go  the  whole 
length  of  the  principle"  laid  down  by  Chancellor  Waties  :   "that   would 
(he  said)  exclude  executors  and  administrators  from  purchasing  on  their 
own  account,  at  sales  of  the  estates  under  their  charge,  in  any  case  what- 
ever, and  thus  p)lace  them  entirely  on  the  footing  of  mere  trustees." — 
"  Perhaps  a  wise  policy  would  place  them  on  that  footing,  ivhere  they 
had  no  interest ;  but  where  they  have  an  interest  in  the  property,   it 
would  seem  to  be  too  severe  a  rule  to  prohibit  executors  and  administra- 
tors from  purchasing  at  such  sales,  at  least  to  the  extent  of  their  interest." 
Chancellor  James  concurred  in  the  principle   maintained  by  Chancellor 
Waties — Chancellors  Gaillard  and  Thomas  dissented,   and  were  for  re- 
versing Chancellor  Waties'  decree.     From  this  time  to  1824,  there  were 
a  variety  of  cases  involving,  in   a  greater  or  less  degree,  the  principle 
maintained  by  Chancellor  Waties,  in  Perry  v.   Dixon :  but  in  none  of 
them  did  it  receive  the  sanction  of  the  Court.     In  the  case  of  Bullock  v. 
Williams  and  wife,(a)  the  purchase  made  by  Mrs.  Williams,  who  was  the 
administratrix  of  her  former  husband,  at  her  own  sale,  was  attempted  to 
be  set  aside,  and  was  supported  by  the  Circuit  Chancellor,  on  the  ground 
of  its  fairness.     That  decree  was  affirmed  by  the  Court  of  Appeals,   or 
acquiesced  in  by  counsel  thoroughly  acquainted  with  the  current  of  de- 

*Not  reported. 


*406]  COLUMBIA,  DECEMBER,  1835.  311 

cisions.  So  far  as  I  am  aware,  the  question,  divested  of  circumstances  of 
actual  or  letjal  fraud,  has  not  been  i>rescntedto  the  Court  of  Appeals  since 
1824.  In  Edmunds  v.  Crenshaw  &  M'Morris,  1  M'C.  Ch.  Rep.  252,  it 
was  adjudged  by  Chancellor  Thompson,  that  the  purchase  of  the  execu- 
tor, M'Morris,  at  the  sale  made  by  himself  and  his  co-executor,  was  void, 
and  his  decree  was  affirmed  by  the  Court  of  Appeals.  But  in  that  case 
the  defendant,  M'Morris,  never  complied  with  the  terms  of  the  sale,  and 
was,  from  insolvency,  incapable  of  paying  the  price  at  which  he  made  the 
pui'chase,  at  the  time  the  decree  was  pronounced.  So  that  that  decision 
can  be  maintained  upon  other  principles :  and  /  knoio  that  the  recovery 
was  not  rested  by  the  plaintiffs  upon  the  abstract  principle  of  equity, 
that  a  trustee  to  sell  is  not  allowed  to  buy  at  his  own  sale.  In  Trimmier 
V.  Trail,  2  Bail.  484,  I  indicated  ray  opinion  on  this  question  :  and  as  I 
am  *about  giving  utterance  to  that  o])inion  more  formally  and  r^.r^^f 
authoritatively,  it  is  not  necessary  to  take  any  more  specific  notice  L 
of  that  case.  In  ex  parte  Wiggins,  1  Hill's  Ch.  Rep.  353,  my  brother 
Harper,  with  the  concurrence  of  the  whole  Court,  laid  down  the  rule, 
that  the  purchase  of  a  trustee  to  sell  was  voidable  on  the  application, 
and  at  the  instance,  of  any  of  his  cestui  que  trusts.  On  looking  into  that 
case,  it  will  be  seen  it  was  a  sale  and  purchase  by  an  assignee  :  and  does 
not  therefore  conclude  the  exception  now  insisted  on,  in  favor  of  execu- 
tors and  administrators.  After  this  review  of  the  adjudications  in  this 
State,  it  will  be  seen  that  the  case  of  Drayton  v.  Drayton  has  never 
been  reversed  ;  and  that,  on  the  score  of  authority,  the  exception  for 
which  I  contend  is  made  out. 

But  independent  of  this,  it  is  enough  for  my  purpose,  that  in  establish- 
ing a  principle  of  law,  I  am  not  guilty  of  the  unpardonable  sin  (as  some 
seem  to  think  it)  of  reversing  some  ill-advised  and  hasty  opinion  of  our 
own,  or  of  our  i^espected  predecessors. 

In  Perry  v.  Dixon,  Chancellor  De  Saussure,  with  his  usual  good  judg- 
ment, thought  that  executors  and  administrators  ought  not  to  be  put  on 
the  footing  o^ mere  trustees:  and  I  hope  to  be  able  to  demonstrate,  that 
so  far  as  the  question  before  us  is  concerned,  they  are  not,  and  they  can- 
not be  so  regarded. 

At  common  law,  an  executor  or  administrator  is  the  legal  owner  of  the 
goods  and  chattels  of  the  testator  or  intestate  ;  and  before  1824,  he  could 
legally  dispose  of  them  to  another,  without  even  the  order  of  the  Ordinary. 
The  goods  and  chattels  of  the  testator,  after  the  payment  of  deljts  and 
legacies,  were  formerly,  both  at  law  and  in  equity,  the  proi)erty  of  the 
executor.  So  too,  an  administrator,  by  paying  the  debts  and  the  shares 
of  the  distributees,  without  even  a  sale,  would,  in  England,  have  made  the 
goods  of  the  deceased  his  own.  In  England,  and  in  this  State,  until 
1745,  P.  L.  202,  the  executor  or  administrator  could  only  be  called  on 
to  account  for  the  appraised  value  of  the  testator  or  intestate's  goods. 
This  was  the  only  standard  by  which  creditors,  legatees  or  distributees, 
could  charge  him.  To  the  goods  thejnsolvcs,  if  aliened  or  wasted,  they 
had  no  right:  and  until  1745,  executors  or  administrators  might  lawfully 
take  the  goods  as  their  own,  at  the  ajipraised  value,  In  1745,  the  Legis- 
lature recited,  that  "Whereas  a  custom  hath  too  much  prevailed  among 
executors  and  administrators,  of  taking  estates  or  some  parts  thereof,  at 


312  SOUTH    CAROLINA   EQUITY    REPORTS.  [*407 

*insn  ^^^^  appraisement,  M-hen  such  appraisement  *hath  been  under  the 
-^  true  value,"  and  for  remedy  thereof,  enacted,  "that  no  executor 
or  administrator  shall  hereafter  be  i)ermitted  to  take  any  estate,  or  any 
part  thereof,  at  the  ap2'>roisemeni,  and  that  no  appraisement,  to  be  made 
as  aforesaid,  shall  be  binding  or  conclusive,  either  upon  the  creditors, 
legatees,  next  of  kin,  or  other  person  interested  in  such  estates,  or  upon 
the  executors  or  administrators  ;  but  all,  and  every  such  executors  and 
administrators,  shall  be  accountable  and  chargeable  for  the  true  value 
of  such  estates,  any  practice  to  the  contrary  notwithstanding." 

This  review  of  the  rights  and  liabilities  of  executors  and  administrators 
at  common  law,  and  under  the  Act  of  1745,  clearly  shows,  that  by  paying 
the  true  value,  they  might  acquire,  as  against  their  cestui  que  trii.sts,  the 
goods  of  their  testator  or  intestate  For  the  Act  of  1745  restricts  their 
general  ownership  to  an  acquisition  for  the  true  value.  This  certainly 
shows,  that  an  executor  or  administrator  was  something  more  than-  a  mere 
trustee  :  for  if  he  paid  the  full  value  of  the  goods  to  the  creditors,  neither 
they  nor  the  next  of  kin  could  question  his  rights.  Let  it  be  remem- 
bered, that  an  executor  or  administrator  never  was  a  mere  trustee  to 
sell:  his  trust  was  and  is,  to  collect  the  personal  assets  of  the  deceased, 
to  pay  debts  and  legacies,  and  the  residue  to  distribute  according  to  the 
will  or  the  law.  In  1745,  the  Ordinary  was  not  authorized  to  order  sales 
of  the  personal  estate  to  be  made:  in  1789,  he  was  clothed  with  that 
power,  for  division,  payment  of  debts,  or  to  prevent  the  loss  of  perish- 
able articles:  and  in  1824,  the  executor  (when  not  authorized  by  the  will 
to  sell)  and  the  administrator  were  prohibited  from  selling  without  the 
permission  of  the  Ordinary.  These  several  acts  make,  as  I  conceive,  the 
prerequisites  to  the  validity  of  a  purchase,  by  an  executor  or  adminis- 
trator, that  the  sale  should  have  been  fairly  made  by  the  authority  of  the 
will,  or  by  the  order  of  the  Ordinary,  in  a  case  in  which  he  had  jurisdic- 
tion, and  that  the  price  is  the  true  value  of  the  goods.  If  this  be  not  the 
result  of  the  Acts  of  1824,  1789,  and  1745,  some  one  of  them  must  be 
inoperative.     This  will  not  be  contended  for. 

An  executor  or  administrator,  however,  cannot  be  regarded  as  a  mere 
agent  to  effect  a  sale.  He  generally  is  greatly  interested  in  the  estate  of 
which  he  has  the  management.  Is  he  to  be  excluded  from  acquiring  a 
favorite  slave,  when  he  is  willing  to  give  more  than  every  other  bidder  ? 
Can  it  be  that  his  purchase  at  one  dollar  more  than  A.'s  bid,  shall  be  set 
*4091  ^^^^^  5  ^^^^  y^^>  ^f  ^^^  ^^^  suffered  the  ^property  to  go  oft"  at  A.'s 
-^  bid,  the  sale  would  have  been  good  ?  The  reason  of  the  rule — 
the  prevention  of  secret  frauds  in  the  purchases  of  trustees  to  sell — does 
not  apply  to  sales  made  by  executors  or  administrators.  They  are  made 
in  public,  in  the  neighborhood  where  the  property  is  known,  the  sale  is 
conducted  by  an  indifferent  person,  an  auctioneer  employed  for  the  occa- 
sion ;  if  fraud  is  committed,  it  is  obliged  to  be  known  to  the  spectators  or 
auctioneer,  and  can  therefore  be  proved  ;  and  hence  there  is  no  necessity 
for  an  artificial  rule  to  prevent  its  perpetration. 

The  application  of  the  principle,  that  a  trustee  to  sell  cannot  be 
allowed  to  purchase  at  his  own  sale,  to  executors  or  administrators, 
would  often  compel  executors  to  decline  to  qualify  as  such :  and  would 
prevent  the  widow  or  children  of  an  intestate  from*  claiming  the  right  of 
administration,  guarantied  to  them  by  law.     For  if  they  assume  any  of 


*409]  COLUMBIA,    DECEMBER,    1835.  313 

these  characters,  (i.  e.  executors  or  administrators,)  under  the  rule  stutcil, 
they  cannot  buy  any  of  the  personal  property  of  tlie  deceased,  wliicli  may 
be  sokl  under  the  will,  or  the  order  of  the  Ordinary.  The  riiihl  to  buy 
at  such  sales  is  often  of  essential  importance  to  persons  named  executors, 
the  widow  and  the  children  ;  and  hence,  if  as  executors  or  administrators 
they  could  not  buy,  they  would  be  compelled  to  forego  the  executorship, 
or  administration.  This  would  be  making  a  mere  rule  of  equity,  intended 
to  subserve  justice,  work  a  positive  legal  wrong,  and  carry  out  and  enforce 
the  grossest  injustice. 

For  these  reasons,  I  have  coniQ  to  the  conclusion,  that  an  executor  or 
administrator  is  not  to  he  regarded  as  a  mere  trustee  to  sell :  that  his 
own  lyarchase  at  his  own  sale,  when  fairly  made  in  pursuance  of  the 
will,  or  under  the  order  of  the  Ordinary  in  a  case  of  which  he  had 
jurisdiction,  for  the  true  value  of  the  goods  and  chattels  so  sold,  is 
good ;  and  must  be  supported  both  in  law  and  equity. 

In  this  case,  the  administrator  has  shown  that  he  sold  by  the  order  of 
the  Ordinary,  in  a  case  of  which  he  had  jurisdiction  ;  that  the  sale  was 
fairly  made,  and  that  he  purchased  at  the  true  value. 

It  is  therefore  ordered  and  decreed,  that  so  much  of  Chancellor  De 
Saussure's  decree,  as  sets  aside  the  administrator's  purchase  of  the 
slave  August,  be  reversed. 

Johnson  and  Harper,  Js.,  concurred. 


*  l^p^  An  Act  of  the  Legislature  was  passed  on  the  18th  r-jitiirt 
December,  1835,  entitled,  "An  Act  to  reform  and  amend  the  Judi-  L 
ciary  System  of  this  State,"  which  repealed  the  Act  of  1824,  estal)lishing 
a  Court  of  Appeals ;  and  provides,  that  from  the  Judges  of  the  said  Court 
of  Appeals,  two  shall  be  designated  by  ballot  of  both  branches  of  the 
Legislature,  to  act  as  Chancellors,  and  that  the  remaining  Judge  shall 
perform  the  duties  of  a  Judge  of  the  Courts  of  Law;  and  that  the  Law 
Judges  and  Chancellors,  shall  meet  and  sit  at  Columbia  on  the  fourth 
Monday  in  November,  and  the  third  Monday  in  July, — and  at  Charles- 
ton on  the  first  Monday  in  January,  and  the  fourth  Monday  in  April,  in 
each  year,  "for  the  purpose  of  holding  the  Court  of  Appeals,  in  hearing 
and  determining  all  motions  which  may  be  made  for  new  trials,  and  iu 
arrest  of  judgment,  and  such  points  of  Law  and  E(|uity  as  may  be  sub- 
mitted to  them,  with  the  same  powers  now  exercised  by  the  Court  of 
Appeals  :  Provided,  that  not  less  than  a  majority  of  the  Law  Judges, 
and  a  majority  of  the  Chancellors,  shall  hold  said  Court ;  and  provided 
also,  that  no  Chancellor  or  Law  Judge,  l)y  or  l)efore  whom  a  case  has- 
been  heard  or  tried,  shall  exercise  appellate  jurisdiction  thereupon  in 
said  Court." 

In  pursuance  of  this  Act,  and  in  the  same  session,  the  Hon..  David 
Johnson,  and  the  Hon.  Wm.  Harper,  were  designated  by  ballot  as 
Chancellors  ;  and  consequently,  the  Hon.  J.  B.  O'Neall,  the  remaining 
Judge,  became  a  Judge  of  the  Courts  of  Law. 


CASES    IN    CHANCERY 

ARGUED  AND  DETERMINED  IN  THE 

COURT  OF  APPEALS  OF   SOUTH  CAPtOLI^^A. 

Clpilcsfoit— ^prll,  1836.* 


CHANCELLORS   AND   LAW   JUDGES   PRESENT. 


Hon.  henry  W.  DE  SAIJSSURE, 
Hon.  DAVID  JOHNSON, 
Hon.  WM.  HARPER, 
Hon.  J.  JOHNSTON, 
Hon.  J.  B.  O'NEALL, 


Hon.  J.  S.  RICHARDSON, 
Hon.  JOSIAH  J.  EVANS, 
Hon.  J.  B.  EARLE, 
Hon.  a.  p.  BUTLER. 


A.  Jackson,  and  Others,  v.  John  Inabnit,  and  Andrew  Inabnit. 

Where  one  signed  a  deed  conveying  several  slaves  in  trust  to  his  son  with  limitations 
over,  and  kept  the  deed  — neither  the  trustees  nor  the  son  being  present, — and  the 
son  had  possession  of  some  of  tlie  negioes  at  the  time,  and  afterwards  got  the 
others  ;  but  there  was  no  proof  that  he  ever  recognized  the  deed  :  Held,  that  there 
was  not  such  evidence  of  delivery  of  the  deed  as  to  subject  the  property  to  its 
limitations.  [*415] 

Where  parties  churning  under  the  limitations  of  a  deed  obscure  and  doubtful  in  its 
terms,  had  submitted  it  to  counsel  for  advice,  and  afterwards  publicly  aban- 
doned their  claim,  and  the  property  was  sold  at  the  instance  of  creditors,  and 
went  into  the  hands  of  purchasers  for  valuable  consideration,  they  shall  not  be 
permitted  afterwards  to  setup  their  claims:  that  would  sanction  a  practical  fraud 
on  the  purchasers.    Their  acquiescence  is  an  abandonment  of  their  rights.  [*416] 

Heard  before  Chancellor  De  Saussure,  at  Walterborongh,  January, 
1835. 

The  plaintiffs  filed  their  bill  against  the  defendants,  claioaing  certain 
negroes  under  a  deed  wherein  defendants  are  appointed  trustees,  executed 
by  Baltus  Inabnit,  deceased  ;  in  wliich,  as  they  allege,  he  conveys  the  ne- 
groes in  question,  to  his  son  Christian,  with  limitations  over  in  favor  of  the 
plaintiffs,  in   the  event  of  his   death  without   issue.     They  allege  that 

*No  Appeals  from  the  Courts  of  Chancery  were  heard  in  the  January  Term,  for 
the  want  of  a  quorum  in  such  cases  ;  one  of  the  Chancellors  being  engaged  in  holding 
the  Circuit  Court  in  Charleston,  and  the  late  Act  requiring  a  majority  both  of  the 
law  Judges  and  Chancellors  to  constitute  a  quorum,  and  at  the  same  time  disquali- 
fying a  Judge  or  Chancellor  from  the  exercise  of  appellate  jurisdiction  in  cases  tried 
before  him. 


*411]  CHARLESTON,    APRIL,    1836.  315 

Christian  died  withont  issue,  and  tliat  they  are  entitled ;  and  pray  that 
such  of  the  *shxves  as  came  into  defendants'  possession,  may  he 
delivered  up,  and  that  they  account  for  the  remainder,  which  tliey  •- 
charg-e  have  been  lost  by  their  neg;lig"ence  and  misinanagemont.  Several 
questions  were  made  and  argued  on  the  hearing  of  the  case  on  the  Circuit, 
and  decided  by  the  Chancellor.  But  it  is  only  necessary  to  state  the  facts 
connected  with  those  decided  by  the  Court  of  Api)eals. 

The  first  question  related  to  the  delivery  of  the  deed.  It  purported  to 
have  been  signed,  sealed  and  delivered  in  the  presence  of  three  witnesses 
— was  proved  and  recorded.  George  Clayton,  one  of  the  subseril)ing 
witnesses,  testified  that  he  witnessed  the  signing  by  Baltns  Inabnit,  ancl 
proved  the  deed  before  a  magistrate.  He  did  not  in  fact  sec  the  deed 
delivered;  for  neither  John  nor  Andrew  Inabnit  was  present,  and  Baltus 
took  it  away  with  him.  It  was  objected  by  the  plaintiifs,  that  it  was 
inadmissible  to  examine  the  witness  as  to  the  delivery,  as  he  had  pre- 
viously sworn  on  the  probate,  before  recording  that  he  saw  the  deed  "  signed, 
sealed  and  delivered."  On  which  the  Chancellor,  in  his  report,  says,  "  I 
overruled  the  objection,  because  it  was  manifest  tliat  the  witness,  an  igno- 
rant man,  when  called  on  to  prove  the  execution,  meant  no  more  than 
that  he  saw  Baltus  Inabnit  sign  the  deed.  He  says  he  did  not  see  it 
delivered.  On  principle,  witnesses  can  be  thus  examined.  On  the  trial 
of  the  due  execution  of  wills,  although  the  subscribing  witnesses  have 
testified  that  the  will  was  duly  executed,  they  are  subjected,  subsequently, 
to  a  full  examination  as  to  the  particulars  of  the  execution,  to  ascertain 
whether  the  facts  which  took  place  at  the  time  of  the  execution,  corre- 
sponded with  the  course  prescribed  by  the  statute.  Besides,  the  proof  is 
clear  that  John  Inabnit  was  not  present,  and  it  was  not  alleged  that  An- 
drew Inabnit  was.  This  is  a  distinct,  independent  fact,  clearly  admissible 
to  proof;  and  being  proved,  as  it  was,  even  by  the  subscribing  witness  to 
the  deed,  is  conclusive  that  no  delivery  in  fact  took  place,  for  none  could 
take  place  to  them.  jSTow,  in  this  suit,  which  is  to  make  the  trustees 
liable,  this  is  all-important.  Again,  Baltus  Inabnit  took  away  the  deed  ; 
he  kept  the  control  over  it,  to  be  used  or  not,  as  he  pleased.  Thi^re  is, 
indeed,  no  proof  that  the  deed  was  ever  delivered  by  Baltus  Inabnit  to 
the  persons  he  had  named  as  trustees  in  the  deed  ;  for  when  it  was  desired 
to  have  it  proved,  the  witness,  Clayton,  testified  that  he  was  sent  for  to 
prove  it,  by  Baltus  Inabnit ;  and  there  is  no  proof  who  ordered  the  deed 
to  be  recorded.  Nor  *is  there  any  evidence  that  these  persons  r*_iiq 
ever  accepted,  or  did  any  act  showing  an  acceptance  of  the  trust.  L 
This  bill  then,  which  seeks  to  make  them  liable  as  trustees,  for  neglect  of 
duty  amounting  to  a  breach  of  trust,  cannot  be  sustained  against  them." 

The  deed  itself,  as  the  Chancellor  states,  "is  profoundly  obscure;  more 
obscure  than  the  subtlety  of  learning,  designing  to  conceal  a  meaning, 
could  have  contrived  it.  It  was  a  gift  of  tlie  property  to  Christian  Inab- 
nit, with  incomprehensible  provisions  and  limitations,  which  are  void  for 
uncertainty,  and  he  held  the  property  clear  of  them."  "  It  appears. further," 
continues  the  Chancellor,  "  by  the  evidence,  that  Baltus  Inabnit  had  put 
his  son.  Christian,  in  possession  of  this  property  I)efore  the  execution  of 
the  deed,  and  that  he  held  the  same  as  his  own.  So  that  the  fatlier  had 
no  right  to  exercise  any  control  over  these  slaves,  and  to  make  a  new 
gift  with  limitations.     And  it  seems  certain,  that  Christian  Inabnit  did 


316  SOUTH    CAROLINA    EQUITY    REPORTS.  [*413 

not  claim,  or  hold  under  the  deed,  (if  he  knew  of  its  existence,)  for  he 
treated  the  slaves  as  his  own  absolute  property,  and  mortgaged  them  to 
secure  the  payment  of  his  own  debts. 

"  There  is  still  another  ground  of  great  importance.  After  the  death 
of  Christian  Inabnit,  the  brothers  and  sisters  set  up  a  claim,  under  the 
deed,  and  took  counsel  thereon.  On  a  very  hasty  perusal  of  the  deed, 
and  without  a  full  knowledge  of  the  facts,  the  gentleman  consulted  (who 
is  remarkable  for  his  sound  judgment)  was  of  opinion  that  it  was  a  good 
and  valid  deed,  and  would  operate  on  the  property,  and  give  the  plaintiffs 
a  good  title.  Subsequently,  on  fuller  information  and  on  a  more  deliberate 
consideration,  he  changed  his  opinion.  Other  counsel  of  great  respecta- 
bility was  also  consulted,  who  informed  the  plaintiffs  that  the  deed  was 
so  obscure,  that  no  intelligible  meaning  could  be  made  out  of  it ;  and  that 
in  his  opinion  the  plaintiffs  could  not  sustain  their  claim  under  the  deed. 
It  was  then  necessary  to  come  to  a  conclusion,  for  the  creditors  of  Christian 
Inabnit  desired  to  know  of  the  plaintiffs  whether  they  meant  to  make  a 
claim  under  the  deed,  that  they  might  re.:ist  the  same,  and  bring  it  to  a 
conclusion.  After  a  deliberate  reconsultation  with  their  counsel,  and 
under  his  opinion,  the  plaintiffs  gave  up  their  claim.  They  abandoned 
their  intention  to  pursue  it ;  and  the  creditors  were  informed  of  this  reso- 
lution :  whereupon  they  took  no  steps  to  get  the  judgment  of  a  Court. 
In  consequence  of  this  abandonment,  the  creditors  of  Christian  Inabnit 
*i1i1  ^^^^^  upon  their  liens,  *and  the  slaves  in  question  were  sold  pub- 
-'  licly,  and  in  the  presence  of  almost  all  the  plaintiffs,  who  made  no 
objection,  and  some  of  them  even  became  bidders  at  the  sale.  The  slaves 
were  purchased  by  dift'erent  persons,  at  high  prices,  and  have  been  held 
by  them,  and  in  some  instances  transferred  to  other  purchasers  for  valua- 
able  consideration.  The  proceeds  of  these  sales  were  applied  to  pay  the 
debts  of  Christian  Inabnit.  Under  these  circumstances,  it  appears  to  me 
that  these  transactions  can  never  be  disturbed,  and  that  the  plaintiffs  can- 
not have  relief,  and  their  bill  should  be  dismissed." 

The  plaintiffs  appealed. 

Smith,  Attorney- General,  for  the  appellants. 
Ilemminger,  contra. 

Mr.  Justice  Butler  delivered  the  opinion  of  the  Court. 

The  Chancellor  who  pronounced  the  circuit  decree,  being  in  full  pos- 
session of  the  whole  case,  has  decided  all  the  questions  fairly  involved  in 
it.  His  decision  leads  to  the  conclusion  that  the  plaintiffs'  bill  should  be 
dismissed,  and  we  concur  in  this  conclusion.  Whilst  it  was  proper  for 
him  to  decide  on  all  the  grounds  taken  below,  it  is  not  necessary  for  this 
Court  to  take  more  than  will  sustain  his  decree. 

The  grounds  on  which  we  rest  our  decision,  are  : 

1.  There  was.  not  suthcient  testimony  to  satisfy  the  Chancellor,  that  the 
deed  which  purports  to  have  been  executed  by  Baltus  Inabnit  was  ever 
duly  delivered  by  him  for  the  purposes  expressed  in  it ;  or  that  Christian 
Inabnit  took  the  negroes  under  the  deed,  and  held  them  subject  to  its 
limitations  and  control. 

2.  The  parties  who  were  interested  in  claiming  under  the  deed,  after 
Christian's  death,  having  deliberately  and  upon  a  full  knowledge  of  their 


*-il4]  CHARLESTON,    APRIL,    1836.  317 

rights,  agreed  not  to  assert  their  claims,  they  shall  not  now  be  pcruiitted 
to  do  so  after  the  negroes  have  been  sold  to  bona  fide  i)urchasers,  for 
valuable  consideration,  in  satisfaction  of  the  debts  contracted  by  Christian 
Inabnit  on  the  faith  of  them. 

As  it  regards  the  first  ground,  it  is  perhaps  sufficient  to  say,  that  the 
Chancellor  who  heard  the  testimony  was  more  capable  of  judging  of  its 
force  and  sufiicieucy  than  we  can  be,  who  must  look  at  it  as  it  is  repre- 
sented, and  not  as  it  was  developed  during  the  trial.  It  is  certain,  from 
the  testimony  of  the  only  subscribing  *\vitness  that  was  examined,  r:|c^iK 
that  the  deed  was  not  delivered  in  fact,  at  the  time  it  purports  to  L 
have  been  executed.  Baltus  Inabit  kept  it  in  his  possession — in  his  ex- 
clusive possession — during  his  lifetime.  He  may  have  intended  to  reserve 
to  himself  a  control  over  the  deed,  and  the  property  conveyed  by  it.  But 
it  might  be  inferred  that  a  delivery  had  been  made,  sufficient  to  give  the 
deed  its  legal  operation,  if  it  had  been  proved  that  Christian  took  under 
it,  or  acknowedged  its  existence  in  the  lifetime  of  his  father.  But  such  a 
conclusion  does  not  seem  to  be  authorized.  At  least,  the  Judge  below 
did  not  think  so.  He  says  : — "It  appears  further  by  the  evidence,  that 
Baltus  Inabnit  had  put  his  son.  Christian,  in  possession  of  this  property 
before  the  execution  of  the  deed,  and  that  he  held  the  same  as  his  own.  So 
that  the  father  had  no  right  to  exercise  any  control  over  these  slaves,  and 
to  make  a  new  gift  with  limitations.  And  it  seems  clear  that  Christian 
did  not  claim  or  hold  under  the  deed,  (if  he  knew  of  its  existence,)  for  he 
treated  the  slaves  as  his  own  absolute  property,  and  mortgaged  them  to 
secure  the  payment  of  his  own  debts."  From  the  explanation  made  in 
the  argument,  it  is  probable  that  the  son  had  ])art  of  the  slaves  only  in 
his  possession,  before  the  deed  was  executed.  The  others  that  went  into 
his  possession  afterwards,  were  regarded  by  him,  as  the  first  were,  as  his 
own  absolute  property  ;  and  as  there  is  no  evidence  that  he  knew  of,  or 
assented  to  the  deed  Jjefore  his  father's  death,  it  is  fair  to  conclude  that 
he  held  the  negroes  by  a  title  independent  of  the  deed.  But,  as  before 
observed,  it  was  a  question  of  evidence  ;  and  the  judgment  passed  upon 
it,  by  the  Circuit  Chancellor,  is  entirely  satisfactory  to  this  Court,  he 
having  a  better  opportunity  to  decide  rightly  than  we  have. 

We  feel  fortified  in  the  second  ground,  by  the  consideration  that  the 
slaves  were  sold  to  satisfy  the  debt  of  Christian  Inabnit,  contracted,  no 
doubt  on  the  faith  of  their  being  his  absolute  property.  This  of  itself 
would  not  be  enough  to  deprive  the  parties  of  their  rights  under  the  deed, 
if  they  were  clearly  expressed  and  definitely  secured  by  the  provisions  and 
legal  requisites.  But  the  deed  is  exceedingly  obscure,  and  of  doubtful 
import.  So  much  so,  that  it  would  be  difficult  for  any  Court  to  pro- 
nounce a  satisfactory  judgment  on  its  legal  construction.  The  plaintiffs 
believing,  or  supposing  that  they  had  a  legal  claim  under  the  deed,  sub- 
mitted it  to  intelligent  counsel  for  direction  and  advice.  This  was  at  the 
time  the  negroes  were  about  being  sold.  Their  counsel  iook  *time,  p^  , ,  „ 
b}  agreement  with  the  representatives  of  creditors,  to  investigate  ^ 
the  question  presented.  The  plaintiffs  were  informed  that  their  claim 
could  not  be  sustained.  This  was  not  the  hasty  conclusion  of  inexperi- 
enced advisers.  The  plaintiffs,  on  such  advice,  agreed  to  abandon  their 
claim  ;  and  by  their  consent  or  acquiescence,  the  projjcrty  was  sold,  and 
bought  by  purchasers  for  valuable  consideration.     Would  it  be  right  to 


318  SOUTH    CAROLINA    EQUITY    REPORTS.  [*416 

set  aside  these  sales,  made  under  such  circumstances  ?  To  do  so,  would 
be  to  sanction,  if  not  an  intentional,  a  practical  fraud  upon  the  pur- 
chasers. By  the  conduct  and  consent  of  the  plaintiffs  the  purchasers 
acquired  their  title.  The  law  will  not  disturb  their  title  now,  by  offend- 
ing the  obvious  justice  which  the  whole  case  suggests. 

If  the  deed  under  which  the  parties  claim  has  no  legal  existence  for 
the  want  of  delivery ;  or,  if  it  has  lost  its  legal  operation  by  the  conduct 
of  those  interested  in  it,  then  the  plaintiffs  must  fail  in  their  application 
for  redress. 

Whether  any  testimony  was  properly  rejected,  as  well  as  some  other 
questions  in  the  case,  may  only  be  adverted  to,  to  say  that  we  do  not 
deem  it  necessary  to  pass  any  judgment  on  them. 

It  is  ordered  and  decreed  that  plaintiffs'  motion  be  refused,  and  that 
their  bill  be  dismissed,  with  costs. 

Chancellors  Harper  and  Johnston,  and  Justices  O'Neall,  Richard- 
son, Evans,  and  Earle,  concurred. 


Georgk  Edwards  and  Others  v.  Martha  S.  Barksdale,  Administratrix. 

Under  the  statute  of  distributions,  first  cousins  of  the  whole  and  half  blood  are  next 
of  kin  in  equal  degree,  and  equally  entitled  to  the  estate  of  the  intestate.  [*417] 

Heard  before  Chancellor  Harper,  at  Coosawhatchie,  February,  1836. 

It  was  referred  to  the  Commissioner  to  inquire  and  report  who  are  the 
next  of  kin  of  the  intestate,  Thomas  H.  Barksdale.  He  reports  on  the 
evidence,  that  the  intestate  left  a  widow,  the  defendant,  and  the  several 
plaintiffs  his  only  next  of  kin  ;  that  Thomas  B.  Bona  is  a  first  cousin  of 
the  whole  blood;  and  that  George  Edwards,  Mary  Holbrook,  Mrs.  Coe, 
and  Mrs.  Kirk,  are  first  cousins  of  the  half  blood  ;  and  submits  to  the 
decision  of  the  Court  who  are  the  next  of  kin.  Thomas  B.  Bona  excepts 
to  the  report,  on  the  ground  that  the  Commissioner  should  have  reported 
*41*7l  *^'™  ^^^^  o"^y  ^^^^  ^^  '^i"'  entitled  to  the  estate  under  the  statute 
-J  of  distributions. 

Harper,  Chancellor.  The  statute  provided,  that  "  if  the  intestate  shall 
have  no  lineal  descendant,  father,  mother,  brother  or  sister,  of  the  whole 
blood,  or  their  children  ;  or  brother  or  sister  of  the  half  blood,  or  lineal 
ancestor,  then  the  widow  shall  take  two-thirds  of  the  estate,  and  the  re- 
mainder shall  descend  to  the  next  of  kin."  If  no  widow,  the  portion 
allotted  to  her  is  to  go  as  the  remainder.  The  questions  are,  whether 
the  half  blood  are  included  at  all  under  the  description  of  next  of  kin  ;  or, 
if  admitted,  whether  they  are  put  on  the  same  footing  with  kindred  of  the 
whole  blood,  or  postponed  one  degree. 

The  terms  of  the  Act,  in  their  plain  and  literal  import,  certainly  do 
include  the  half  blood.  Being  descended  from  a  common  ancestor,  they 
are  no  less  of  kin  than  the  whole  blood ;  and  according  to  the  method  of 
computation  pointed  out  by  the  Act  itself,  these  plaintiffs  all  stand  in  the 
same  degree  to  the  intestate.     By  the  English  statute  of  distributions, 


*417] 


CHARLESTON,    APRIL,    1836.  319 


(22  and  23  Car.  2,  c.  10,)  which  was  of  force  in  this  State  previously  to 
the  passino;  of  our  own  Act  of  1791,  if  there  are  no  children,  the  estate  is 
given  to  the  next  of  kin.  Under  this  statute,  it  has  been  always  held, 
that  the  half  blood  are  included,  and  they  arc  put  on  the  same  footing 
with  the  whole  blood,  in  the  granting  of  administration  and  the  distribu^ 
tion  of  estates. 

But  it  is  argued,  that  the  Act  of  1701,  is  an  Act  of  descents,  not  of 
distributions  ;  the  disposition  of  real  estate  being  first  provided  for,  and 
then  it  is  provided  that  the  distribution  of  personal  estate  shall  conform 
to  it.  In  construing  a  statute  of  descents,  we  must  have  reference,  not 
to  the  English  statute  of  distributions,  which  received  its  construction 
from  the  civil  or  canon  law,  but  to  the  common  law  of  descents.  That 
law  is  still  of  force,  unless  in  so  far  as  it  has  been  altered  by  the  statute ; 
and  in  giving  construction  to  the  words  "next  of  kin,"  we  must  take 
them  to  mean  such  next  of  kin,  as,  on  general  principles  of  law,  are  quali- 
fied to  take  For  example,  if  the  next  of  kin  were  an  alien,  he  is  within 
the  letter  of  the  law,  yet  no  one  supposes  that  he  can  inherit  land  ;  or,  if 
a  statute  similar  to  ours  were  passed  in  England,  that  an  attainted  per- 
son could  inherit. 

Let  us  examine  the  Act  by  the  rules  prescribed  by  Lord  Coke,  in 
Heydon's  case,  3  Rep.  7. 

*1.   What  was  the  common  law,  before  the  making  of  the  Act  ?  [-^  . ,  ^, 

2.  What  was  the  mischief  and  defect  for  which  the  common  law  ^ 
did  not  provide  ?     And, 

3.  What  remedy  the  Legislature  hath  resolved  and  appointed,  to  cure 
the  disease  of  the  commonwealth. 

We  know  what  the  canons  of  the  common  law  were,  in  relation  to 
descents  ;  and  we  perfectly  well  know  the  evil  which  was  intended  to  be 
remedied.  The  complaint  was,  that  the  estates  of  deceased  persons  were 
distributed,  not  as  it  was  supposed  nature  and  affection  would  have 
prompted  the  owner  to  dispose  of  them,  but  by  certain  artificial  rules 
arising  out  of  the  feudal  system,  which  had  ceased  to  exist.  The  eldest 
son  was  preferred  to  the  younger,  though  they  were  equally  near  in  blood, 
and,  it  may  be  presumed,  in  aifection  to  the  father.  So  sons  were  pre- 
ferred to  daughters  ;  and  in  the  more  remote  relations,  males  in  every 
instance  to  females.  The  Act  corrects  all  this,  by  putting  all  children 
on  the  same  footing,  and  sisters  on  the  same  footing  with  brothers.  Why 
should  it  not  be  contended  that,  under  the  clause  in  question,  male  next 
of  kin  should  be  preferred  to  female  ?  The  express  object  of  the  Act  is, 
"  to  abolish  the  right  of  primogeniture,  and  to  give  an  equal  distribution 
of  the  real  estates  of  intestates."  A  general  purpose,  which  runs  through 
the  whole  Act,  and  may  be  detected  in  every  one  of  its  provisions,  is  to 
distribute  the  estates  of  deceased  persons  among  their  kindred,  according 
to  propinquity  of  blood  ;  supposing,  what  is  in  general  true,  that  affection 
is  according  to  nearness  of  blood.  Keeping  in  view  this  general  purpose 
of  the  Act,  we  may  more  easily  arrive  at  its  true  construction. 

On  the  same  reasoning  which  was  used  in  this  case,  it  might  be  contended 
that  the  next  of  kin,  to  take  under  the  Act,  must  be  of  the  blood  of  the 
first  purchaser.  But  when  we  recollect  the  origin  of  that  rule,  the  strictly 
descendible  nature  of  feuds,  and  that  upon  failure  of  descendants,  they 
reverted  to  the  lord,  and  call  to  mind  the  general  purpose  of  the  Act 


320  SOUTH    CAROLINA    EQUITY    KEPOKTS.  [*418 

aboYO-inontioiUHl,  wo  shall  hardly  oouolude  that  a  man's  land  may  escheat 
to  the  Slate,  thongh  he  may  have  near  kindred  to  inherit  it. 

So  it  might  be  snpposed  that  when  the  intestate  was  the  lirst  purehaser 
of  the  land,  the  heirs  on  the  part  of  the  father  shonld  inherit  in  preference 
to  those  on  the  part  of  the  mother.  If  this  wore  admitted,  then  the  most 
remote  relation  on  the  part  of  the  tathor  wonhl  iidu-rit,  in  preference  to  a 
very  near  one  on  the  jiart  of  the  mother.  But  this  would  be  opposed  to 
^.,f.-|  the  i)urpose  of  the  *Aet,  which  puts  males  and  females  on  the 
'  -^  same  footing.  Xo  distinction  is  known  in  nature,  between  the 
alVection  for  relations  on  the  part  of  the  father,  and  those  on  the  part  of 
the  mother.      Other  such  instances  might  be  ]nit. 

So  in  the  case  of  the  half  blood.  Mr.  llargrave,  in  his  note  to  Coke, 
Ijit.  14,  a.  n.  3,  refers  to  Wright's  Ten.  1S4,  where  the  exclusion  of  the 
half  blood  is  supposed  to  be  a  consequence  of  the  rule  for  restricting  the 
succession  to  the  descendants  of  the  lirst  feudatory.  Mr.  Cruise,, in  his 
Treatise  on  Real  Estates,  (3  vol.  3G5,)  supposes  it  to  have  been  derived 
from  the  Xorman  customs,  by  which  the  half  blood  by  the  mother's  side, 
was  excluded  when  the  inheritance  descended  from  the  father,  and  vice 
versa:  which  he  supjioses  to  have  boon  in  time  extended  to  the  entire 
exclusion  of  the  half  blood,  lie  refers  to  the  Urand  Coustumier,  c.  '25. 
There  can  be  little  doubt  but  that  it  must  have  originated  in  some  such 
feudal  reason,  for  it  is  not  foumled  in  nature.  Can  we  suppose  it  con- 
formable to  the  spirit  of  our  Act,  that  the  most  remote  conceivable  kins- 
man of  the  whole  blood  shall  inherit  in  preference  to  the  children  of  a 
brother  of  the  half  blood  ?  or,  if  there  be  none  of  the  whole  blood,  that 
the  land  shall  escheat  ?  For  if  the  next  of  kin  of  the  half  blood  are  not 
init  on  the  same  footing  with  those  of  the  whole  blood,  the  consequence 
must  I'o  tliat  I  hey  are  excluded  altogether. 

With  respect  to  the  alien,  the  purposes  of  the  Act  of  ITOl  have  no 
imaginable  connection  with  the  policy  of  the  law  which  disables  such  an 
one  to  hold  land  within  the  State;  and  construing  according  to  its  sjnrit, 
I  may  well  conclude  that  the  Act  did  not  intend  to  embrace  him,  though 
in  strictness  comprehended  within  its  letter.  But  certainly  I  can  tind 
nothing  in  the  Act  to  auihori/.e  me  to  exclude  the  half  blood,  who  are 
expressly  within  the  letter. 

Nor  can  the  half  blood,  as  contended  for,  be  postponed  one  degree. 
According  to  the  reasoning  I  have  used,  if  the  half  blood  Inul  not  been 
si)ocilioally  mentioned  at  all,  they  would  have  boon  includod  in  the  Act, 
and  ]»lacod  on  the  same  footing  with  the  whole  blood.  In  certain  enu- 
merated instances,  however,  they  are  postponed  one  degree.  Am  I  from 
this  to  iidor  that  they  are  to  be  in  like  manner  postponed  in  every  other 
instance,  where  no  such  thing  is  said.  The  contrary  is  rather  the  legiti- 
mate inference.  I  may  suppose  that  it  would  have  been  more  conformable 
to  nature,  that  the  half  blood  should  have  been  postponed  one  degree 
*4201  ^^^'■^^"p.'lio"^  fii'il  conjecture  that  only  through  some  casual  *inat- 
tention  of  the  Legislature,  it  was  not  thus  expressed.  But,  cer- 
tainly, I  am  not  at  liberty  to  depart  from  the  plain  terms  of  the  Act, 
upon  such  a  conjecture. 

I  am  happy  to  tind  myself  supported  in  this  conclusion  by  the  decided 
cases  on  the  subject — that  of  Karwon  c.  Lowndes,  2  Kq.  Kep.  2\0  ;  and 
by  the  authority  of  Chancellor  De  Saussure,  iu  Guerard  c.   Guerard, 


*4:2()]  CHARLESTON,  AriiiL,  1830.  821 

reported  in  a  note  to  Wren  r.  Carncs,  4  Eq.  Rep.  405.  Nor  do  I  recrard 
it  as  at  all  inconsistent  with  the  determination  in  Wren  v.  Carnes,  ami  in 
Lawson  v.  Perdrianx,  1  ISrC.  45(5,  that  by  the  Act  of  17*t7,  amending; 
that  of  1701,  and  providinc^,  that  where  there  is  a  father  or  mother,  and 
brother  or  sister,  they  shall  take  eqnally — brother  or  sister  of  the  whole 
blood  only  is  meant.  Upon  the  i)articular  jirovisions  of  both  Acts  con- 
strned  toe-ether,  I  shonld  certainly  arrive  at  the  same  conclnsion. 

It  is  a(ljnde:ed  and  decreed,  that  the  said  Thomas  13.  Bona,  CJeortre 
Edwards,  INlary  Ilolbrook,  INIrs  Coc,  and  Mrs.  Kirk,  are  the  next  of  kin 
of  the  intestate,  Thomas  II.  Barksdale,  in  eqnal  degree,  and  eqnally 
entitled  to  his  estate. 

Colcock  Q.nd  JPCarfhy,  for  appellant. 

Petigru  and  I)e  TreviUc,  contra. 

Chancellor  De  Saussure  delivered  the  opinion  of  the  Conrt. 

In  ordinary  cases  it  might  be  snflicient  to  say,  that  the  Court  is 
unanimously  of  opinion  the  decree  delivered  in  this  case  by  Chancellor 
Harper  is  correct,  and  must  be  allirmed.  J>ut  the  very  confident  tone 
in  which  it  was  insisted  by  the  counsel  for  the  i)laintin',  Thomas  ]>.  Bona, 
that  the  decree  was  erroneous  in  jtrinciple,  and  that  the  authorities  on 
which  it  professed  to  rely  were  wholly  uufoiahlc,  or  inapplical)ie,  require 
that  something  more  should  be  said.  The  Conrt  has  reexamined  the 
statutes  which  required  construction,  as  well  as  the  cases  which  have 
been  decided  under  them  ;  and  upon  full  consideration,  is  entirely  satis- 
fied that  the  construction  heretofore  given  to  the  statutes  respecting  the 
half  blood  is  the  correct  construction,  and  that  the  cases  decided,  were 
rightly  decided,  and  are  in  harmony  with  each  other. 

The  Court  expresses  itself  in  this  decided  manner,  that  it  may  be 
understood  by  the  profession  and  the  community,  that  the  construction 
and  doctrine  established  by  this  decree  is  permanently  settled,  and  the 
door  to  further  litigation  on  the  subject  closed. 

It  is  therefore  unanimously  adjudged  and  decreed,  that  the  decree  of 
the  Circuit  Court  be  affirmed. 


CASES  IN  CHANCERY 


ARGUED  AND  DETERMINED  IN  THE 


COURT   OF  APPEALS   OF  SOUTH  CAROLINA. 


6olumbhi — |u1it,  1836. 


CHANCELLORS  AND   LAW  JUDGES    PRESENT. 


Hon.  HEXRY  W.  DE  SAUSSURE, 
Hon.  DAVID  JOHNSOX, 
Hon.  WM.  HARPER, 
Hon.  J.  JOHNSTON, 
Hon.  J.  B.  O'NEALL, 


Hon.  RICHARD  GANTT, 
Hon.  J.  S.  RICHARDSON, 
Hon.  JOSIAH  J.  LEWIS, 
Hon.  B.  J.  EARLE, 
Hon.  a.  p.  BUTLER. 


Ez.  Massey  vs.  Andrew  M'Ilwain,  Nancy  M'Cardell  and  James 

King. 

Purchaser  at  sheriff's  sale  not  allowed  the  protection  of  an  execution  under  which 

the  land  was  not  sold.  [*425] 
One  who  has  paid  the  purchase-money,  taken  possession  and  made  improvements 

under  a  parol  contract  for  the  purchase  of  land,  entitled  to  specific  performance. 

[*426]  f  f 

One  purchasing  land,  to  which  another  has  an  equitable  title,  with  notice  of  the 
equity,  takes  subject  to  the  equity,  and  is  bound  to  convey  in  like  manner  as  the 
person  from  whom  he  purchased.  [*42G] 

Where  land  was  sold  under  execution  as  the  property  of  one  who  had  the  legal  title, 
but  under  a  parol  contract  which  had  been  performed  was  bound  to  convey  to  the 
plaintiff,  the  purchaser  is  invested  with  all  the  rights  of  the  judgment  creditors  at 
whose  instance  the  land  was  sold,  and  want  of  notice  to  them  of  the  plaintiff's 
equity  may  protect  him  ;  but  it  seems  that  the  possession  of  the  land  by  the  plain- 
tiff would  be  sufficient  notice  to  creditors.  [*427] 

The  rule  in  equity  is,  that  an  agreement  in  writing  to  convey  will  bind  the  estate 
and  prevail  against  subsequent  liens ;  so,  too,  a  parol  contract  to  convey  which 
has  been  performed  and  set  up  by  the  Court,  has  equal  validity  with  a  written 
covenant ;  and  the  party  entitled  to  specific  performance  may  hold  the  land  against 
subsequent  judgment  creditors  of  the  vendor.  [*428] 

Heard  before  Chancellor  Johnston,  Lancaster,  July,  1835. 

In  1826,  the  plaintiff,  and  the  defendant  King,  contracted  with  Nathan 
and  Abel  Funderburk,  to  purchase  of  them  a  tract  of  land,  containing 
two  hundred  and  ninety-six  acres,  for  six  hundred  dollars.  With  the 
consent  of  the  plaintiff,  they  executed  a  conveyance  to  King  alone,  who 
gave  them  his  note  for  the  money,  with  the  plaintiff  as  security,  but  the 
conveyance   has  never   been   recorded.     It  was,  however,  at  the  time 


*421]  COLUMBIA,  JULY,  1836.  323 

expressly  agreed  between  plaintiff  and  King,  that  plaintiff  was  to  have 
one  half  the  land,  and  he  (King)  shonld  convey  the  sarae  to  plaintiff, 
when  he  paid  him  his  portion  of  the  price  ;  but  this  agreement  was  merely 
verbal,  and  was  never  reduced  to  writing.  Immediately  after  tlie  pur- 
chase, both  King  and  *the  plaintiff  settled  on  the  land,  and  went  rn^.a^ 
on  with  building  and  improving ;  and  not  long  after  procured  a  '-  "'"' 
surveyor  to  run  a  dividing  line  between  them;  and  from  that  time  to  the 
present,  they  have  both  lived  on,  improved  and  cultivated  their  respective 
portions  as  designated  by  this  line.  In  1830,  or  thereabouts,  the  ]iiniiitiir, 
having  previously  made  other  payments,  paid  the  balance  in  full  to  King, 
his  proportion  of  the  price  of  the  land,  but  never  obtained  a  conveyance 
from  him.  Previous  to  this  time.  King  had  become  much  involved  in 
debt,  and  judgments  were  obtained  against  him  for  a  considerable  amount, 
at  the  instance  of  sundry  i)ersons,  and  entered  up  at  dift'erent  times  from 
1828  to  1830,  some  of  them  for  debts  contracted  before,  and  some  of  them 
after  plaintiff  had  paid  King  his  portion  of  the  purchase-money,  and 
amongst  others,  one  at  the  suit  of  the  Funderburks,  against  both  himself 
and  the  plaintiff,  for  $52,  being  a  balance  due  of  their  notes  given  as  the 
price  of  the  land.  The  entire  tract  of  land,  including  that  in  the  posses- 
sion of  plaintiff  as  well  as  King,  in  October,  1830,  was  however  levied 
on  and  sold,  in  February,  1831,  as  the  property  of  King,  under  an  execu- 
tion at  the  suit  of  one  H.  Hoey.  At  this  sale  the  defendants,  Andrew 
M'llwain  and  Nancy  M'Cardell,  were  the  purchasers.  M'llwain,  who 
was  the  active  agent  in  the  purchase,  had  explicit  notice  of  the  possession 
and  nature  and  extent  of  the  plaintiff's  claim  at  the  time  he  purchased. 
Defendants,  M'llwain  and  M'Cardell,  have  commenced  an  action  at  law 
against  the  plaintiff,  to  try  the  title  and  recover  possession  of  the  land  ; 
and  the  object  of  this  bill  is  to  set  aside  the  sale  to  them,  and  to  restrain 
their  proceedings  in  the  action  at  law. 

The  Chancellor.  In  the  view  which  I  take  of  this  case,  it  is  unneces- 
sary to  examine  most  of  the  questions  made.  Whether  M'llwain  and 
Mrs.  M'Cardell  had  or  had  not  notice  of  the  transactions  between  King 
and  Massey,  before  they  purchased  from  the  sheriff,  is  immaterial,  so  long 
as  they  can  stand  in  the  shoes  of  the  creditors  of  King,  to  whom,  with 
the  exception  of  the  Funderburks,  it  is  not  pretended  notice  was  extended 
by  the  arrangement  of  King  and  Massey  themselves.  The  title  was  taken 
to  King,  which  procured  him  credit  on  the  faith  of  the  land.  Massey 
cannot  therefore  complain  that  King's  creditors  should  satisfy  them- 
selves out  of  property  of  which  he  consented  that  King  shouUl  become 
the  ostensible  owner ;  and  if  the  creditors  had  the  *sale  of  the  r*  ^go 
land  in  their  power,  a  sale  by  them  to  a  person  infected  with  L 
notice,  was  as  good  as  if  made  to  one  who  had  no  notice  at  all.  To  say 
otherwise,  would  put  it  in  the  power  of  one,  first,  to  obtain  credit,  and 
then,  by  giving  general  notice,  to  defeat  that  creditor  of  his  remedy,  by 
cutting  off  all  purchasers  under  the  creditors'  execution.  The  well- 
known  principle,  that  one  infected  with  notice  may  safely  purchase  from 
and  protect  himself  under  another  destitute  of  notice,  is  of  easy  applica- 
tion to  this  case.  This  is  sufficient  to  decide  the  case,  as  between  the 
plaintiff  and  the  defendants,  M'llwain  and  M'Cardell.  As  to  King,  the 
plaintiff  is  entitled  to  a  decree  against  him  for  reimbursement ;  although 
at  present  his  insolvency  may  seem  to  render  that  nugatory. 


324  SOUTH    CAROLINA   EQUITY   REPORTS.  [*423 

Tt  is  decreed  that  the  bill  against  the  defendants,  M'llwain  and  Mc- 
Cardell,  be  dismissed  ;  and  that,  as  between  the  plaintiff  and  the  defend- 
ant. King,  an  account  be  taken  to  indemnify  the  phiintiff"  for  such  pay- 
ments as  the  plaintiff  has  made  said  King,  on  the  score  of  the  land  men- 
tioned in  the  pleadings — the  plaintiff  to  be  liable  to  M'llwain  and  Mc- 
Cardell  for  their  costs,  and  King  to  be  liable  over  to  the  plaintiff  for 
theirs,  and  all  other  costs  of  the  case. 

The  plaintiff  appealed,  and  now  moved  to  reverse  the  Chancellor's  de- 
cree, on  the  ground  that  the  case  made  entitled  him  to  relief. 

Clinton  and  Peareson,  for  the  appellant,  contended  that  it  was  an  es- 
tablished principle  of  equity,  that  one  purchasing  a  trust  estate,  or  an 
estate  subject  to  equitable  rights,  with  notice,  took  subject  to  all  the  lia- 
bilities of  the  vendor.  That  it  was  not  denied  that  as  between  the  plain- 
tiff and  King,  the  performance  of  the  parol  contract  for  the  land,  by  the 
payment  of  the  purchase-money,  and  taking  possession  and  making  im- 
provements, made  such  a  case  as  entitled  the  plaintiff  to  a  specific  per- 
formance. The  proof  was  clear  that  M'llwain,  the  agent  in  the  purchase, 
had  explicit  notice  of  the  plaintiff's  equity  at  the  time  he  made  the  pur- 
chase, and  even  before.  And  if  it  be  insisted  that  he  is  invested  with  the 
rights  of  the  creditors'  executions,  it  is  contended  that  they  too  had  legal 
notice.  The  possession  of  the  plaintiff  from  1826,  his  improvements  and 
general  acts  of  ownership,  the  creditors  living  in  the  neighborhood,  con- 
stituted such  evidence  of  title  in  him  as  should  have  put  the  creditors  on 
the  inquiry  ;  and  amounted  to  notice  of  his  claim.  Besides,  these  debts 
*i9i1  ^^''^  "*^^  contracted  on  the  faith  *of  this  land.  King  had  no  ac- 
-l  tual  possession  ;  he  had  the  deed,  it  is  true,  but  it  was  not  re- 
corded ;  and  if  creditors  came  to  a  knowledge  of  the  purchase,  they  would 
at  the  same  time  know  the  manner  of  the  purchase,  and  the  plaintiff's 
claim.  The  defendants  cannot  be  protected  under  Funderburk's  execu- 
tion, for  this  creditor  was  privy  to  the  agreement  between  King  and  the 
plaintiff,  and  knew  of  its  performance.  At  the  time  the  agreement  was 
performed,  there  were  no  liens  on  the  land,  and  King  had  the  right  to 
convey.  The  plaintiff's  equity  is  therefore  paramount  to  that  of  credi- 
tors. Cited  Daniels  v.  Davidson,  16  Ves.  250;  1  John.  Ch.  Rep.  267; 
2  Fonb.  151;  5  John.  Ch.  29. 

W.  F.  De  SausHiire,  contra,  argued  that  the  defendants,  M'llwain  and 
M'Cardell,  as  purchasers  for  a  valuable  consideration,  were  entitled  to 
the  protection  of  the  Court.  They  had  not  only  the  rights  of  purchasers, 
but  were  invested  with  all  the  rights  of  the  execution  creditors,  among 
whom  Funderburk  had  his  execution  for  the  balance  due  on  the  original 
purchase. 

By  the  Court. — Was  Funderburk's  execution  levied  ? 

It  was  not — but  the  balance  due  on  it  was  paid  from  the  sales.  The 
debts  were  contracted  subsequent  to  the  purchase  of  the  land,  and  on  the 
faith  of  it.  The  equity  of  the  creditors  is  at  least  equal  to  that  of  the 
plaintiff;  and  where  equities  ai*e  equal,  the  law  must  prevail. 

As  to  notice — He  insisted  that  notice  to  the  purchasers  was  not  suffi- 
cient :  there  must  be  notice  to  the  creditors,  whose  rights  they  are  clothed 
with  ;  and  there  was  no  proof  of  notice  to  them.  Possession  is  only 
evidence  of  title  to  personal  property,  not  to  real.     A  purchaser  with 


*424]  COLUMBIA,  JULY,  1836.  325 

notice  of  an  equity,  ma}'  protect  liimself  by  want  of  notice  to  the  porsoii 
from  wliom  he  purchased.  And  here,  these  defendants  will  be  protected 
by  want  of  notice  to  the  creditors.  Cited  Amb.  764  ;  1  John.  Ch.  Rep 
274;  Ca.  Temp.  Talb.  187;  Brandlyn  n  Ord,  1  Atk.  571  ;  Sweet  v. 
Southcote,  2  Bro.  Ch.  66;  Biimpus  i;.  Platner,  1  John.  CIi.  219. 

Chancellor  Johnson  delivered  the  opinion  of  the  Court. 

It  seems  that  at  the  time  of  the  sale  of  the  land  by  the  sheriff,  and  the 
purchase  by  defendants,  there  was  still  a  small  balance  of  the  principal, 
and  the  costs,  remaining  due  on  the  judgment  at  the  suit  of  Funderljurk 
against  the  defendant,  King  and  *  the  plaintifF,  for  the  price  of  the  r^,:)r 
land  ;  and  before  I  enter  upon  what  are  supposed  to  be  questions  •- 
of  more  importance,  I  will  dispose  of  the  argument  of  the  counsel  op- 
posed to  the  motion,  by  which  it  is  insisted,  that  the  debt  itself  was  an 
equitable  lien  on  the  lands,  and  overreached  the  claims  of  the  plaintiif  as 
well  as  all  others.  However  this  may  be  in  point  of  principle,  (and  I 
will  not  stop  to  examine  it,)  the  land  was  not  sold  under  that  judgment, 
nor  are  the  plaintiffs  in  that  cause  parties  to  this  suit,  or  claiming  the 
benefit  of  their  lien  (if  in  law  they  have  any,)  nor  can  the  defendants 
shelter  themselves  under  it,  for  there  is  no  privity  between  them. 

The  legal  estate  in  the  land  was  confessedly  in  the  defendant,  King,  at 
the  time  the  judgments  referred  to  were  obtained  against  him,  and  the 
sale  made  by  the  sheriff ;  and  the  question  is,  whether  the  equity  of  the 
plaintiff,  arising  out  of  the  agreement  between  him  and  King,  that  King 
should  convey  one  half  of  the  land  to  him  on  his  paying  half  the  price 
agreed  to  be  paid  for  the  whole,  his  subsequent  possession  of  the  land, 
and  the  actual  payment  of  the  money,  should  prevail  against  the  legal 
rights  of  the  defendants,  M'llwaiu  and  M'Cardell,  who  purchased  with 
notice  of  the  nature  and  extent  of  the  plaintiff's  claim. 

If  King  was  under  no  legal  obligation  to  convey  to  the  plaintiff,  or  if 
the  legal  title  acquired  by  defendants  under  their  purchase,  or  the  equity 
of  the  creditors  of  King  at  whose  suit  the  land  was  sold,  is  entitled  to  be 
preferred,  then  of  course  the  plaintiff  is  not  entitled  to  the  relief  which 
he  prays  ;  but  if,  on  the  other  hand,  the  rights  of  plaintiff  arc  to  be  pre- 
ferred, he  ought  not  to  be  disturbed  in  the  possession.  In  the  consider- 
ation of  the  case,  it  will  therefore  be  necessary  to  ascertain — 

1.  What  are  the  rights  of  the  plaintiff,  as  l)etween  King  and  himself. 

2.  What  are  his  rights  as  between  the  defendants,  M'llwaiu  and  Mc- 
Cardell,  purchasers  with  notice — and 

3.  What  are  his  rights  with  reference  to  those  who  were  creditors  of 
King  at  the  time  he  fulfilled  his  agreement  with  him,  by  paying  his  por- 
tion of  the  price  of  the  land. 

1.  Notwithstanding  the  statute  of  frauds,  the  Courts  of  Chancery  have, 
for  a  long  period  of  years,  and  through  along  series  of  judicial  decisions, 
enforced  the  specific  performance  of  parol  contracts  for  the  sale  of  lands, 
where  they  have  been  partly  performed  ;  and  *the  ground  upon.  r:j:jop 
which  they  have  proceeded,  is  not  that  they  are  not  within  the  '- 
original  provisions  of  the  statute,  but  because  the  suffering  of  the  party 
who  had  accejjted  the  performance,  to  shelter  himself  under  the  provi- 
sions of  the  statute,  would  enable  him  to  practice  a  fraud  at  least  as 
odious  as  that  which  the  statute  was  intended  to  prevent,  and  thus  render 
Vol.  L— 44 


326         SOUTH  CAROLINA  EQUITY  REPORTS.       [*4:26 

tlie  statute  an  instrument  of  fraud.  It  is,  however,  a  doctrine  which  the 
Courts  have  carried  out  with  reluctance,  and  over  which  they  have 
watched  with  a  jealous  circumspection.  Hence  the  rigid  proof  which  is 
required  of  the  terms  of  the  contract,  and  the  fact  of  paitial  perform- 
ance, for  which  I  refer  to  Thomson  v.  Scott,  et  al. — 1  M'C.  Ch.  Kep.  33. 

The  proof  here  is  perhaps  as  perfect  as  could  be  expected  to  be  de- 
rived from  matters  depending  on  memory,  not  only  of  the  terms  of  the 
agreement  between  King  and  the  plaintiff,  but  of  the  partial  execution 
of  it  by  King,  in  delivering  the  possession  of  the  laud,  and  running  out 
and  marking  a  dividing  line  between  them,  and  of  the  entire  performance 
by  the  plaintiff  of  his  part  of  the  agreement,  by  paying  the  price  stipu- 
lated ;  and  it  will  suffice  to  remark  of  these  circumstances,  that  they  con- 
stitute the  proof  required  by  the  most  rigid  rule. — 1  Mad.  Ch.  380. — 
The  plaintiff  is  therefore  entitled,  as  between  himself  and  King,  to  a 
specific  performance.     This  has  not  been  questioned. 

2.  Regarding  the  rights  of  the  other  defendants,  as  derived  from  King, 
the  rule  in  equity  is,  that  one  coming  into  the  possession  of  trust  property 
with  notice  of  the  trust,  shall  be  considered  as  the  trustee,  and  bound  to 
the  execution  of  the  trust  with  regard  to  that  particular  property.  As  in 
Taylor  v.  Stibbert.  2  Ves.  jun.  437,  where  tenant  for  life  granted  leases 
for  lives  under  a  power,  and  bound  himself  upon  the  dropping  in  of  a 
life,  to  grant  new  leases  with  the  same  provisions  for  the  renewal  on  the 
death  of  any  person  named  in  any  future  lease,  and  afterwards  joined  in 
a  sale,  though  the  power  was  exceeded  ;  and  it  was  held  that  a  purchaser 
having  notice  would  be  bound  to  a  specific  performance,  by  granting  a 
new  lease,  with  the  same  provision,  if  a  life  dropped  in,  in  the  lifetime  of 
his  lessor.  Now,  although  the  legal  estate  in  the  land  was  in  King,  yet, 
by  accepting  performance  of  the  agreement  on  the  part  of  the  plaintiff, 
he  held  subject  to  his  equity,  and,  as  trustee,  was  bound  to  convey  ac- 
cording to  the  terras  of  the  contract ;  and  the  defendants,  having  had 
notice  at  the  time  they  purchased,  are  bound  by  the  same  trusts. 
^  ,c,K-|  *3.  Defendants,  M'llwain  and  M'Cardell,  are  not  only  invested 
-■  under  their  purchase  with  all  the  rights  of  King,  but  they  are  also 
clothed  with  the  rights  of  his  creditor,  at  whose  instance  the  land  was 
sold.  The  creditor  has  the  right  to  have  his  debt  satisfied  out  of  the 
property  of  his  debtor,  and  if  it  is  sold  under  execution  for  that  purpose, 
the  purchaser  is  invested,  not  only  with  the  rights  of  the  debtor,  but  those 
of  the  creditor  also — which  is  in  some  degree  peculiar.  If,  for  example, 
the  debtor  convey  lands  after  judgment  signed  against  him,  or  even  before, 
when  he  conspires  with  the  purchaser  to  defraud  his  creditors,  a  pur- 
chaser at  sheriff's  sale,  at  the  instance  of  the  creditor,  is  entitled  to  pre- 
vail against  the  voluntary  alienee  of  the  debtor,  notwithstanding  the 
legal  estate  of  the  debtor  had  been  before  divested  by  his  voluntary  alien- 
ation ;  and  in  that  case,  the  rights  of  the  purchaser  are  derived  from  the 
creditor,  and  hence  the  necessity  of  the  third  inquiry  proposed. 

Some  of  the  debts  for  which  judgments  were  subsequently  obtained 
against  King,  were  contracted  before  the  plaintiff  had  performed  his  part 
of  the  agreement  to  purchase  the  land,  and  when  the  legal  title  was  con- 
fessedly in  King,  and  assuming  that  he  obtained  credit  on  the  faith  that 
it  belonged  to  him,  it  is  insisted,  that  in  Equity  the  claims  of  the  creditors 
ought  to  be  preferred  ;  at  any  rate  that  the  Court  will  not  aid  the  plaintiff 


*427]  COLUMBIA,  JULY,  1836.  327 

in  doing  wrong  to  the  creditors,  but  leave  them  to  tlieir  rights  at  law. 
But  it  will  be  recollected  that  at  the  time  plaintiff  i)aid  his  money,  the 
creditors  had  no  lien  on  the  land,  and  that  the  payment  of  the  money 
alone,  if  it  gave  him  no  legal  right,  made  him  as  meritorious  a  creditor 
of  King,  as  if  he  had  lent  him  money  or  sold  him  goods,  and  placed  him 
on  at  least  an  equal  footing  with  the  other  creditors.  He  was  also  in 
possession  of  the  land  ;  and  that,  according  to  some  of  the  English  cases, 
was  not  only  notice  to  creditors,  but  sufficient  to  rejiel  the  claims  of  a 
subsequent  purchaser.  In  Daniels  v.  Davidson,  16  Yes.  254,  the  Lord 
Chancellor  Eldon,  observes,  that  there  was  considerable  authority  for  the 
opinion  which  he  held,  that  where  there  was  a  tenant  in  possession  under 
a  lease  or  agreement,  a  person  purchasing  the  estate  was  bound  to  inquire 
on  what  terms  he  was  in  possession,  and  was  bound  by  the  terras  of  the 
lease  or  agreement ;  and  refers  to  the  case  of  Douglas  v.  Whitrong,  in 
which  Lord  Kenyon  held,  that  possession  was  sufficient  notice ;  and  to 
the  case  of  Taylor  v.  Stibbert,  2  Ves.  jun.  *440,  in  which  it  was  1-^490 
expressly  ruled ;  and  if  possession  alone  be  notice  to  a  purchaser,  L 
it  is  necessarily  so  as  to  creditors.  But  the  claims  of  the  plaintiff  rest,  I 
think,  on  higher  grounds  and  more  satisfiictory  authority. 

The  rule  in  Equity  is,  that  an  agreement  in  writing  to  convey  land  in 
consideration  of  an  adequate  price  paid,  will  in  Equity  bind  the  estate, 
and  prevail  against  any  subsequent  judgment  creditor ;  and  is  so  laid 
down  by  Lord  Chancellor  Cowper,  in  Finch  v.  Winchelsea,  1  P.  W.  282. 
The  reason  for  the  rule  is  well  expressed  in  1  Eq.  Ca.  Abr.  320,  Tit. 
Mortgage,  where  it  is  said,  "  that  if  a  man  mortgages  by  a  defective  con- 
veyance, and  there  are  subsequent  creditors  whose  debts  did  not  origin- 
ally affect  the  land.  Equity  will  supply  such  defective  conveyance  against 
such  subsequent  incumbrancers  who  acquired  a  legal  title  afterwards  ;  for 
since  the  subsequent  creditors  did  not  take  the  lands  for  their  security, 
nor  have  in  view  an  intention  to  affect  them ;  when  afterwards  the  lands 
are  affected,  and  they  come  in  under  the  very  person  that  is  in  conscience 
obliged  to  make  the  defective  security  good,  they  stand  in  his  place  and 
shall  be  postponed  to  such  defective  conveyance."  The  same  question 
was  so  ruled  in  Taylor  v.  Wheeler,  2  Vern  564,  where  a  defective  mort- 
gage was  set  up  in  opposition  to  the  claims  of  the  assignees  of  the  mort- 
gagor who  had  become  bankrupt.  In  all  these  cases,  it  is  true,  the 
contracts  were  in  writing,  and  in  that  alone  they  differ  from  the  present 
case  ;  but  I  apprehend  the  principle  equally  applies.  If  the  contract  is 
binding  on  the  parties,  the  legal  effect  is  the  same  whether  it  is  in  writing 
or  by  parol.  A  parol  agreement  to  convey  lands  set  up  by  the  Court, 
has  equal  validity  with  a  deed  containing  a  covenant  to  convey. 

The  judgment  of  the  Circuit  Court  is  therefore  reversed ;  and  it  is 
ordered  and  decreed  that  the  conveyance  of  the  sheriif  to  the  defendants, 
M'llwain  and  M'Cardell,  for  the  lands  described  in  the  pleadings,  be 
delivered  up  to  be  cancelled;  that  the  said  defendants,  ]\I'I]wain  and 
M'Cardell,  be  perpetually  enjoined  and  restrained  from  proceeding  in 
their  action  at  law  against  the  plaintiff  to  recover  the  said  laud ;  and 
that  they  pay  the  costs  of  this  suit. 

Justices  Gantt,  Riciiardson,  O'Neall,  Evans  and  Butler,  concurred. 


328  SOUTH   CAROLINA   EQUITY   REPORTS.  [*429 


*429]    *  Jesse  Gordon,  Administrator,  v.  Sarah  W.  Stevens. 

The  widow  is  entitled  to  interest  or  mesne  profits  up  to  the  time  her  dower  is 
assigned  to  her.  [-429] 

This  case  has  already  been  before  the  Court  of  Appeals,  and  a  decree 
made,  allowing  the  defendant  dower,  and  directing  her  to  account  for  the 
rents  and  profits  of  the  land  of  which  she  had  been  in  possession  since 
her  husband's  death.  (See  ante,  46.)  In  Jane,  1835,  the  case  came  up 
again  before  Chancellor  Johnston,  on  exceptions  to  the  Commissioner's 
report,  in  which  the  defendant  was  allowed  one  third  of  the  rent  of  the 
land  occupied  by  her,  in  addition  to  the  gross  sum  allowed  her  out  of  the 
sales  of  the  land  for  dower.  The  Chancellor  sustained  the  plaintiff's  first 
exception  objecting  to  the  report  in  this  particular;  and  the  defendant 
appealed, 

J.  J.  Calchvell,  for  the  appellant.  That  the  widow  is  entitled  to  one- 
third  of  the  rents  and  profits — cited  Ca.  Temp.  Hard.  25  ;  Graham  v. 
Graham,  1  Yes.  Sen.  262;  Hamilton  u.  Mohun,  1  P.  W.  122;  1  Roper's 
Husband  and  Wife,  450;  Oliver  v.  Richardson,  9  Ves.  222;  Dormer  v. 
Fortescue,  3  Atk.  130-1  ;  Mundy  v.  Mundy,  2  Ves.  122. 

Herndon,  contra. 

Chancellor  Johnston.  I  am  satisfied  I  was  wrong  in  sustaining  the 
plaintiff's  first  exception  to  the  Commissioner's  report. 

The  Court,  in  May  v.  May,  (1  Bailey,  277,)  say,  that  a  widow  is 
entitled,  either  to  interest  or  mesne  profits  up  to  the  time  her  dower  is 
allowed  her:  so  that,  in  this  case,  injustice  was  done  in  disallowing  both. 

The  authorities  quoted  by  the  appellant's  counsel,  have  fully  satisfied 
the  Court,  that  mesne  profits  have  always  been  allowed  in  equity. 

The  motion  to  reverse  so  much  of  the  circuit  decree  as  sustains  the 
plaintiff's  first  exception  to  the  Commissioner's  report,  is  reversed.  Of 
course  the  report  stands  confirmed. 

Chancellors  De  Saussure,  JonNSON  and  Harper,  and  Justices  Gantt, 
Richardson,  O'Neall,  Evans  and  Butler,  concurred. 


*430] 


*Edward  H  Britton  and  Wife,  and  another,  v.  Francis  John- 
son, Executor  of  Wm.  Johnson,  Sen.,  and  Wm.  Johnson,  Jun. 


Testator  by  his  will,  made  specific  bequests  to  his  grand-children,  and  lent  the  rest 
of  his  estate  to  his  wife  for  life,  and  then  directs  viz.  : — "  And  at  her  decease  I 
desire  that  my  executor  do  advertise  and  sell,  and  eqvalh/  divide  all  my  estate 
between  my  children  and  or  their  heirs."  At  the  execution  "of  his  will,  and  at  his 
death,  testator  had  a  wife,  two  sons,  both  of  whom  had  children,  and  two  grand- 
daughters, children  of  a  deceased  son.  On  a  bill  filed  by  the  grand-daughters  (the 
children  of  the  deceased  son,)  claiming  under  the  residuary  clause:  Held,  that 
the  limitation  over  on  tlie  widow's  death  was  a  vested  interest,  and  could  vest  only 
in  such  persons  as  answered  the  description  of  "children"  and  "heirs"  of 
children  ;  and  none  answering  description  of  "  heirs  of  children"  but  the  plain- 
tifls,  they  took  with  the  two  sons,  on  the  widow's  death,  the  sons  one-third  each, 
and  the  plaintiffs  the  remaining  third  between  them.  [^^4:30] 


*430]  COLUMBIA,  JULY,  1836.  329 

Where  an  executor,  who  was  also  a  legatee  purchased  at  his  own  sale,  maile  un'Jei* 
the  order  of  the  Ordinary,  and  appointed  one  agent  to  sell  and  another  to  buy  ;  his 
purchases  were  set  aside  by  Chancellor  Johnston,  on  the  general  principle,  that 
for  the  prevention  of  fraud,  a  trustee  to  sell  sli/ill  not  be  permitted  to  buy  at  his  ■ 
own  sale;  and  if  he  does,  his  purchases  may  be  confirmed  or  set  aside,  at  the 
option  of  the  parties  interested.  [*434] 

This  cause  was  heard  before  Chancellor  Johnston,  at  Marion,  Feb.  5, 
1835. 

Chancellor  Johnston.  This  case  was  taken  up  yesterday,  for  the  pur- 
pose of  examining  two  questions. 

1.  Whether  the  plaintiffs  take  any,  and  if  so,  what  interest,  under  the 
residuary  clause  of  the  will  of  Wm.  Johnson,  sen. 

2.  Whether,  if  they  take  under  that  clause,  they  have  a  right  to  avoid 
the  purchases  made  by  Francis  Johnson,  the  executor,  at  his  own  sale,  as 
set  forth  in  his  answer. 

The  first  question  is  a  very  difficult  one  :  and  I  could  have  wished  the 
counsel  had  referred  more  liberally  to  authorities,  and  assisted  the  Court 
more  than  they  did  with  the  reflections  which  their  own  investigation  of 
the  case,  no  doubt,  furnished  their  minds.  Left  as  I  am  without  this 
advantage,  I  scarcely  hope  to  make  such  a  decision  as  will  prove  satis- 
factory to  the  parties.  Indeed;  I  entertain  such  doubts  as  induce  me  to 
request  that  the  judgment  I  am  about  to  pronounce,  may  be  taken  up 
and  subjected  to  the  review  of  the  Supreme  Court. 

On  the  third  of  October,  1823,  the  testator  executed  his  will;  at  that 
time,  his  family  consisted  of  the  following  members  : — 

1.  His  wife  Celia.  2.  His  son  Francis,  who  had  a  child,  Saml.  W. 
Johnson.  3.  His  son  William,  jun.,  who  had  children;  and  4.  Caroline 
M.  and  Frances  R.  Johnson,  two  children  of  James  Johnson,  another 
son,  who  had  died  in  1815. 

The  will  which  he  executed,  is  in  the  following  words : — 

"  1.  I  give  and  devise  to  ray  grandson,  Samuel  Wilds  Johnson,  at  my 
decease,  one  negro  girl,  by  the  name  of  Minda  ;  to  him  and  his  heirs  for- 
ever. 

"2.  I  also  give  and  bequeath  to  my  son,  Wm.  Johnson's  children,  at 
my  decease,  one  negro  girl  by  the  name  of  Sarah  ;  to  them  and  their 
heirs  forever. 

"  3.  I  also  give  and  bequeath  to  my  two  grand-daughters,  Caroline  M. 
Johnson,  and  Frances  Rebecca  Johnson,  at  my  decease,  one  hundred 
dollars  a  piece,  to  be  paid  to  them  as  soon  as  it  can  conveniently  be 
raised  ;  to  them  and  their  heirs  forever. 

*"  4.  And  after  all  my  just  debts  and  expenses  be  paid,  I  lend  r^cioi 
unto  my  wife,  Celia,  during  her  life,  the  free  and  undisturbed  use  L 
of  all  my  huids,  plantation,  houses,  household  and  kitchen  furniture,  horses, 
stock  of  all  kinds,  cash  in  hand — in  short,  all  and  every  part  of  my  real 
and  personal  estate,  that  I  may  die  possessed  of;  except  what  I liave  de- 
vised to  my  grandchildren  already :  and  at  her  decease,  I  desire  that 
my  executor  do  advertise  and  sell,  and  equally  divide  all  my  estate, 
between  my  children  and  or  their  heirs. 

"5.  And  I  do  make,  nominate,  and  appoint  my  beloved  son,  Francis 
Johnson,  sole  executor,  &c." 


330  SOUTH    CAROLINA    EQUITY    REPORTS.  [*431 

He  died  in  1825,  leaving  this  will  in  fall  force— his  family  consisting  of 
the  same  members  as  at  the  time  he  executed  the  will. 

His  widow,  to  whom  he  ha(^  lent  the  bulk  of  his  property  for  life,  died 
in  1830. 

Edward  11.  Britton,  having  married  Caroline  M.,  one  of  the  daughters 
of  the  testator's  son,  James,  now  joins  with  her  and  the  other  daughter, 
Frances  Rebecca  Johnson,  as  plaintiffs  in  this  suit,  in  claiming  an  interest 
under  the  fourth  or  residuary  clause  of  this  will ;  which  claim  the  testator's 
sons,  William  and  Francis,  who  are  defendants,  resist. 

I  have  derived  no  assistance  from  the  cases  quoted,  for  the  purpose  of 
showing  when  the  term  "  children"  includes  grandchildren,  and  when  it 
does  not. 

There  can  be  no  pretence  here,  that  the  two  children  of  James  Johnson 
can  fall  within  the  description  of  "children"  of  the  testator.  If  they  do 
not  take  under  the  description  of  "heiis  of  testator''s  children,''^  t\xQj 
must  be  excluded.     The  cases  quoted  hav*^.  therefore  no  application. 

It  appears  to  me  that  this  controversy  turns  upon  the  question — whether 
the  limitation  over,  upon  the  death  of  the  testator's  widow,  constituted  at 
his  death  a  vested  interest.  And  I  think  it  did.  The  test  of  a  vested 
interest  is,  that  it  is  made  to  take  effect  upon  no  other  condition  than  the 
possession's  becoming  vacant  by  the  cessation  of  title  in  the  person  to 
whom  the  prior  enjoyment  is  bequeathed:  Whoever  has  a  right  to  step 
in  whenever  the  prior  incumbent  gives  way,  has  a  vested  interest;  who- 
ever is  so  described  by  the  testator  as  to  be  restrained  from  taking  pos- 
session by  no  other  condition  than  that  it  be  vacated,  has  a  vested  right 
under  the  will. 

*4^'>1       *-^^^  the  rights  of  a  testator  pass  out  of  him  at  his  death;  and 
""-J  such  of  them  as  he  constitutes  vested  interests,  must  vest  in  such 
persons  as  at  his  death  come  under  the  description  he  in  his  will  gives 
of  his  legatees. 

If  the  testator  here  had  given  to  his  children,  and  some  of  them  had 
died  between  the  making  of  his  will  and  his  death,  their  children  would 
not  have  answered  the  description,  and  would  not  at  common  law  and 
independently  of  the  Act  of  Assembly,  have  come  in.  Bankhead  t'.  Car- 
lisle, 1  Hill's  Ch.  Rep.  357. 

If  he  had  given  to  the  "heirs"  of  his  children,  and  all  his  children  had 
been  <alive  at  his  death,  none  of  their  children  could  have  come  in  ;  because, 
as  the  children  could  not  have  "heirs"  until  their  deaths,  there  would 
have  been  no  person,  at  the  moment  the  will  began  to  operate,  to  answer 
the  description  of  the  legatees. 

As  the  interest  given  in  this  case  was  a  vested  interest ;  as  it  was  not  to 
spring  up  upon  a  contingency ;  as  its  enjoyment  was  made  to  depend  on 
no  other  condition,  than  the  possession  being  vacated  by  the  widow's 
death,  it  must  vest  at  the  testator's  death,  or  never.  And  it  could  vest 
then  only  in  such  persons  as  were  designated  by  the  words  of  the  will.  It 
could  vest  in  such  persons  only  as  were  at  the  testator's  death  his  "children," 
or  "  heirs  of  his  children." 

William  and  Francis  Johnson,  at  that  time,  answered  to  the  description 
of  "children  ;"  the  children  of  James  Johnson  answered  to  that  of  "heirs 
of  children."  And  in  my  opinion,  these,  among  them,  took  upon  the 
death  of  the  widow. 


*432]  COLUMBIA,  JULY,  1836.  331 

It  is  contended  that  the  testator  intended  that  William  and  Franci.s 
shonld  lake,  if  alive  at  their  mother's  death,  but  that  if  either  or  both  of 
them  shonld  die  before  that  time,  his  or  their  "heirs"  should  take  in  lien, 
of  their  parents,  and  that  these  were  tlie  heirs  meant  by  the  testator. 

But  we  are  not  to  make  the  testator  use  unnecessary  words  ;  nor  hold 
any  words  which  he  has  used  to  be  unnecessary,  merely  to  effectuate  a 
supposed  intention.  M'Donald's  case,  2  Const.  Hep.  94.  This  we  should 
do,  if  we  adopt  the  construction  contended  for.  William  and  Francis 
would,  as  "children,"  have  taken  a  vested  interest  in  the  remainder  in 
question  :  which  would  have  been  transmissible,  and  would  have  come  to 
their  "heirs,"  in  case  of  their  dying  before  their  mother.  So  that  the 
"  heirs"  needed  not  that  the  testator  should  take  any  notice  of  them.  If 
we  adopt  the  construction  contended  for,  the  provision  for  the  heirs  is 
mere  surplusage. 

*If  it  be  argued  again,  that  the  testator  looked  to  the  possibility  r^.oo 
that  William  and  Francis,  his  children,  who  were  alive  when  he  '- 
drew  the  will,  might  die  before  himself,  and  that  in  that  ca<e  he  wished 
their  "heirs"  to  take  their  place,  can  any  one  show,  from  his  language, 
that  this  was  his  intent?  In  such  cases  as  I  have  supposed,  the  "  heirs" 
of  William  and  Francis,  would  have  come  in  only  as  "heirs  of  children" 
Would  not  the  children  of  James  have  answered  to  the  same  description  ? 
Why  then  should  they  have  been  excluded,  while  the  others  were  received. 
My  opinion,  then,  is,  that  the  plaintiffs  take  along  with  William  and 
Francis  under  the  clause  in  question.  And  I  am  somewhat  confirmed  in 
the  opinion  that  this  was  the  testator's  real  intention,  from  expressions 
used  in  the  three  first  clauses. 

In  these  clauses,  the  testator  gives  specific  legacies  ;  1st,  to  the  child 
of  Francis  ;  2d,  to  the  children  of  William  ;  3d,  to  those  of  James.  So 
far,  all  the  families  of  his  children  seem  to  have  stood  in  equal  favor  with 
bim.  We  should  not  on  light  grounds,  after  this,  suppose  that  the  tes- 
tator intended  to  give  the  residuum  of  his  estate  to  two  families  in  exclu- 
sion of  the  third.  And  the  words  he  uses,  in  giving  to  his  grandchildren, 
by  no  means  show  that  the  specific  legacies  were  intended  to  be  all  they 
should  ever  receive  from  his  estate.  He  says  they  shall  have  these  lega- 
cies "at  his  death  ;"  leaving  to  them  the  right  of  receiving  more  at  his 
wife's. 

But  another  question  is — what  share  do  the  children  of  James  take  with 
William  and  Francis  ?  The  direction  is,  that  the  residue  be  equalbj 
divided  between  children  and  the  heirs  of  children. 

At  first  I  thought  that  the  legatees  must  each  take  an  equal  share. 
That  they  should  take  per  capita.  But  more  reflection  has  inclined  me 
to  a  different  opinion,  and  one  which  I  the  more  readily  adopt,  because  it 
harmonizes  better  with  that  equality  at  which  it  appears,  by  i)utling 
together  the  three  first  clauses  and  the  fourth,  the  testator  aimed.  I  do 
not  know  well  how  to  express  the  sense  in  which  the  ])hrase,  "equally 
divided  between  my  children,  and  or  their  heirs,"  strikes  me.  The  best 
I  can  do,  is  to  say  that  it  appears  to  me  the  testator  used  the  words 
"heirs  of  children","  as  an  equivalent  for  a  child;  that  he  rated  them 
equally,  and  directed  that  the  proi)erty  should  be  divided  equally,  upon 
that  principle.  I  cannot  make  this  as  plain  as  I  wish.  *I  cannot  r^^g,^ 
convey  to  others  what  I  think  I  plainly  perceive.  And  I  shall  '- 
not  labor  it. 


332  SOUTH    CAROLINA    EQUITY    REPORTS.  [*434 

The  result  is,  that  the  residuum  is  to  be  divided  into  three  parts  ;  of 
which  one  is  to  go  to  the  two  children  of  James  Johnson,  (equally  between 
them,)  another  to  William,  and  the  third  to  Francis. 

The  second  question  is,  whether  the  plaintiffs  have  a  right  to  set  aside, 
the  purchase  of  certain  slaves  made  by  Francis,  the  executor,  at  his  own 
sale,  (a) 

It  appears,  by  his  answer,  he  made  the  sale  under  an  order  of  the  Ordi- 
nary ;  that  he  appointed  one  agent  to  sell,  and  another  to  buy  for  him. 
These  circumstances  he  states,  as  reasons  for  confirming  his  purchases. 
But  if  the  doctrine,  that  a  trustee  to  sell  cannot  purchase,  were  at  all 
(juestionable  (which  it  is  not),  I  should  hold  the  circumstances  relied  on, 
as  going  very  far  to  condemn  the  sale. 

Here  is  a  trustee  blinding  the  bidders  by  employing  a  by-bidder,  and 
having  such  a  control  of  the  auctioneer's  hammer,  that  he  can  bring  it 
down  instantaneously,  whenever  he  thinks  fit.  And  shall  such  machinery 
sanctify  what  the  law  would  otherwise  condemn  ? 

That  such  purchases  are  clearly  illegal  is  too  well  settled  to  admit  of 
doubt.  I  have  expressed  my  opinion  briefly  in  Wiggins'  case,  and  in  the 
case  of  Crispin  v.  Taylor  ;(6)  in  both  of  which  the  Court  of  Appeals 
concurred  with  me. 

(a)  It  will  be  observed  that  this  part  of  the  decree  w<as  not  appealed  from  ;  and 
further,  that  the  decree  itself  was  pronounced  before  the  decision  of  the  Court  of 
Appeals  in  Stalliugs  and  wife  vs.  Foreman,  ante  401.  R. 

(6)  James  R.  Crispin  vs.  John  Taylor. 

Purchase  by  an  administrator,  (who  was  also  a  distributee,)  at  his  own  sale,  at  a 
price  less  than  the  appointment,  set  aside  by  Chancellor  Johnston,  on  the  ground 
that  a  trustee  to  sell  cannot  purchase  at  his  own  sale,  and  the  administrator 
ordered  to  account  for  the  difference  between  his  bid  and  the  real  value.  Decree 
coiitirnied  by  Appeal  Court,  as  to  setting  aside  the  sale,  but  modified  by  ordering  a 
re-sale  of  the  property.  [*4o5] 

Practice  on  sales  by  executors  and  administrators  being  set  aside,  is  to  order  a 
re- sale  of  the  property,  and  if  more  be  bid  than  was  bid  before,  that  it  go  to  the 
highest  bidder  ;  if  not,  the  first  sale  is  afiirmed    [*43(i] 

The  bill  was  filed  against  the  defendant,  as  administrator  of  the  estate  of  Anne 
Sibley  ;  and  seeks,  amongst  other  things,  to  set  aside  the  purchases  of  the  delcndant 
at  the  administration  sale  made  under  an  order  of  the  Ordinary,  of  a  female  slave 
named  Sarah,  and  some  other  articles  of  small  value,  at  an  inadequate  price.  The 
slave  had  been  appraised  at  one  hundred  dollars,  and  was  purchased  by  the  defend- 
ant at  fifty  dollars.  There  was  no  evidence  of  unfairness,  in  procuring  or  managing 
the  sale;  on  the  contrary,  it  appeared  that  the  sale  was  fairly  conducted.  The 
defendant  was  a  distributee;  and  in  his  answer  states,  that  the  plaintifl' was  present 
at  the  sale,  and  made  no  objection.  It  appeared  also  that  the  solvency  of  the 
defendant  was  doubtful ;  but  the  evidence  on  this  point  was  applied  exclusively  to 
another  ground  for  relief,  and  is  not  adverted  to,  either  by  the  Chancellor  or  the  Court 
of  Appeals,  as  having  any  bearing  on  the  sale 

The  cause  came  on  before  Chancellor  Johnston,  at  Newberry,  July  1833,  and  in 
relation  to  the  sale,  he  made  the  following  decree : 

With  respect  to  so  much  of  the  bill  as  seeks  to  set  aside  Taylor's  purchases  at  his 
own  administration  sale,  although  very  contemptible,  and  evidently  thrown  in  to 
help  out  the  other  parts  of  the  bill,  in  case  of  need,  I  see  not  how,  on  principle,  it 
can  be  dismissed.  I  consider  the  law  as  settled  on  the  point ;  and  not  to  be  mis- 
taken. No  trustee  to  sell,  can  become  a  purchaser:  and,  if  he  does,  he  will  be  held 
to  his  purchases,  or  they  will  be  set  aside,  as  of  course,  at  the  option  of  parties 
interested  in  the  property.     They  are  not  bound  to  show  unfairness  in  the  sale. 


435] 


COLUMBIA,  JULY,   ISSG.  333 


*In  the  last-mentioned  case,  the  very  question    was  decided 
which  was  made  here.     It  was  ruled  that  the  circumstance  of  the 


[*435 


trustee  being  a  co-cedui  que  trust,  gives  him  no  right  to  buy  from  himself. 

The  rule  is  one  of  policy,  made  to  avoid  abuse,  which  it  may  not  be  in  the  power  of 
the  cestui  que  trust  to  prove.  Nor  does  it  alter  the  case  that  the  trus^tee  is  one  of  the 
cestui  que  trusts,  and,  therefore,  interested  in  the  property.  One  who  is  at  the  same 
time  trustee,  and  one  of  several  cestui  que  trusts,  may  be  benefitted,  but  cannot  be 
injured,  by  an  unfair  purchase.  The  temptation  to  abuse,  although  less  th:iii  when 
he  is  trustee  merely,  nevertheless  exists  ;  and  the  reason  of  the  rule  remaining,  the 
rule  remains  in  full  force  also. 

The  right  to  set  aside  such  purchases,  is  a  mere  equity,  and  may  be  waived.  I 
have  but  little  doubt  the  plaintiff  was  present  at  the  sale  and  acquiesced  in  it ;  and 
if  that  had  been  proved,  it  would  have  been  worthy  of  consideration,  whether  it  did 
not  amount  to  a  waiver,  But  there  was  ao  such  proof,  the  answer  is  no  evidence 
on  this  point. 

It  does  not  appear  whether  the  sale  was  confirmed  by  the  Court  of  Ordinary  Avhich 
ordered  it.  If  it  had  been,  (a  practice  which  might  be  adopted  with  much  advan- 
tage, all  the  parties  being  summoned,)  it  would  be  worth  while  to  consider  whether 
the  sale  would  not  be  good,  as  res  judicata.  But  no  such  matter  came  out  in  proof. 
Again,  the  ground  for  avoiding  such  purchases  is  iraud.  If  the  Act  of  Limitations 
had  been  pleaded,  and  the  knowledge  of  the  purchases  brought  home  to  the  plaintiff, 
more  than  four  years  before  filing  the  bill,  it  might  have  been  a  question  whether 
the  equity  to  set  aside  the  purchase  in  question  was  not  barred.  But  there  was  no 
such  defence.  I  throw  out  these  questions,  in  order  to  draw  the  attention  of  the 
bar  to  them  in  future  cases;  for  purchases  by  executors  and  administrators  are  of 
daily  occurrence,  and  all  the  questions  affecting  them  are  of  the  last  importance, 
not  only  to  such  officers,  but  to  all  the  widows  and  orphans  within  this  jurisdiction, 
and  I  believe  none  of  these  questions  have  ever  yet  been  raised  in  our  Courts. 

I  made  some  remarks  touching  them,  in  Lowery  &  Lowery,  from  Sumpter,  but 
the  case  went  off  on  other  grounds  as  well  as  I  recollect.     It  has  not  been  reported. 

There  is  a  qviestion  as  to  the  proper  practice,  on  setting  aside  such  sales.  Shall 
a  resale  be  ordered,  or  shall  the  trustee  account  for  the  value  of  the  property  ? 

In  my  opinion,  that  depends  on  the  number  of  applicants  for  setting  the  sale  aside. 
If  all  the  cestui  que  trusts  apply,  then  a  resale  ought  to  be  ordered.  If,  however, 
only  part  of  them  make  such  application,  an  account  should  be  taken.  It  will  be 
taken  for  granted,  that  those  who  do  not  complain  are  satisfied,  and  affirm  the  sale. 
In  this  case,  none  of  the  distributees  complain,  except  the  plaintiff.  An  account 
will  therefore  be  ordered. 

Decreed — That  the  purchases  by  the  defendant  at  the  sale  made  by  him  as  admin- 
istrator of  Anne  Sibley,  so  far  as  they  are  enumerated  in  the  bill,  be  so  far  set  aside 
that  the  defendant  be  held  accountable  for  the  articles  of  property  so  purchased  by 
him,  at  their  true  value. 

And  that  all  matters  of  account  growing  out  of,  or  connected  with  the  pleadings,  be 
referred  to  the  Commissioner  to  report  thereon,  with  leave  to  report  any  special 
matter. 

The  Commissioner,  at  the  same  Term,  reported — That  the  plaintiff  was  present  at 
the  sale,  and  made  no  objection  to  defendant's  purchase,  which  was  fair;  that  inas- 
much as  the  Chancellor  in  his  decree  had  said,  that  if  the  plaintiff'  was  present  at 
the  sale,  it  might  make  a  different  case  ;  and  as  the  plaintiff's  share  of  the  difference 
between  the  real  value  of  the  property  sold,  and  the  true  value  is  very  inconsider- 
able, (but  twelve  dollars,  sixty-two  and  one-half  cents,)  and  as  he  was  as  much  in 
fault  as  the  defendant,  the  Commissioner  recommends  that  the  defendant  be  not 
allowed  the  excess  beyond  the  real  value  proved. 

On  the  report  coming  before  the  Chancellor,  he  ordered  the  Commissioner"  to  add 
the  distributive  share  of  James  R.  Crispin  and  wife,  of  the  excess  of  value  of  the 
property  proved  on  the  reference  over  the  bids  of  John  Taylor,  to  the  amount 
reported  in  their  favor,"  and  for  which  purpose  the  report  was  re-committed,  and 
being  amended  accordingly,  was  confirmed. 

The  defendant  ajipealed  on  the  following,  grounds : 

1.  Because  the  Chancellor  erred  in  setting  aside  the  sale,  at  the  instance  of  the 


334  SOUTH    CAROLINA    EQUITY   REPORTS.  [*435 

The  ground  taken  for  avoiding  such  sales  is  that  fraud  has  been  practiced, 
which  cannot  be  proved.  If  a  trustee  to  sell,  can  purchase,  he  may  lock 
up  in  his  own  breast  secret  qualities  of  the  article  sold,  which  would,  if 
*4'^ri  tlis<^^<^s6d,  greatly  enhance  its  *  price.  The  case  of  a  gold  mine 
-I  on  land,  unknown  to  all  but  the  vendor,  has  been  frequently  put. 
The  qualities  of  slaves  may  be  urged  as  another.  There  is  no  end  to  the 
arguments  against  such  sales. 

Then,  if  fraud  is  the  ground  for  avoiding  such  contracts,  (if  contracts 
they  may  be  called,  where  there  is  but  one  contracting  party,)  how  can 
^i^Tl  ^^^®  vendor's  having  an  interest  alter  the  case  ?  What  *is  lost  by 
-J  him  iis  cestui  que  trust,  is  more  than  made  up  by  his  gains  as  pur- 
chaser. While  others  divide  the  loss  with  him,  he  has  all  the  gains  to 
himself.  And,  indeed,  he  cannot  be  said  to  sustain  any  loss,  who  defrauds 
himself.     What  he  takes  out  of  one  pocket,  he  puts  into  another. 

The  case  of  Taylor  v.  Crispin,  settles  another  point.  It  is,  that  where 
such  a  sale  is  set  aside,  the  trustee  shall  not  account  for  the  real  value  of 
the  property  ;  but  that  shall  be  ascertained  by  a  re-sale. 

I  suppose  that  the  plaintiffs,  who  ask  to  set  the  sale  aside,  cannot  affect 
Wm.  Johnson's  interests,  who  choses  to  let  it  stand.  Therefore  he  will 
be  entitled  to  his  share  of  what  the  executor  purchased  at — neither  more 
nor  less,  let  the  property  sell  for  what  it  may,  at  the  re-sale  ;  for  that  the 
executor  must  account  to  him,  with  interest. 

As  for  the  plaintiffs,  they  will  be  entitled  to  their  share  of  the  re-sale 
price,  with  hire  of  the  negroes  for  the  time  the  executor  has  had  them. 

It  is  decreed  that  Francis  Johnson  deliver  up  to  the  Commissioner  the 
negroes  he  purchased,  with  their  increase  ;  and  that  the  Commissioner  do 
proceed  to  sell  them,  after  giving  thirty  days  notice.  And  that  the  said 
Francis  do  account  for  their  hire. 

plaintiff,  who  was  present  at  the  sale,  and  not  objecting  thereto,  especially  after  a 

lapse  of  four  years 

2.  Because  the  Chancellor,  after  setting  aside  the  sale,  erred  in  decreeing  that 
defendant  should  account  for  the  difference  between  the  sale  and  the  value  of  the 
property  as  proved,  but  should  have  ordered  a  resale  at  defendant's  risk. 

Caldwell  ^  Fair,  for  appellant. 

Hakper,  J.  We  concur  in  the  principle  announced  by  the  Chancellor,  thnt  the 
defendant's  purchase  of  the  negro  woman  was  liable  to  be  set  aside  at  the  option  of 
the  parties  interested.  It  does  not  appear  to  me  that  the  plaintiff's  barely  being 
present  at  the  sale,  could  be  construed  into  an  acquiescence.  I  do  not  know  by 
what  rule  he  was  then  called  upon  to  express  his  dissent.  I  refer  to  the  case  Ex 
parte  Wiggins, (a)  decided  at  the  present  sitting,  for  my  views  on  the  subject.  The 
Chancellor  was  correct  in  determining  that  the  defendant  could  not  hold  his  pur- 
chase. But,  in  strictness,  the  course  is,  not  that  tlie  executor  should  account  for 
the  difference  between  his  bid  and  the  appraised  value,  (for  the  appraisement  is  but 
prima  facie  evidence  of  value,)  but,  that  the  property  should  be  re-sold.  Any  cred- 
itor or  distributee  has  a  right  to  require  a  re-sale.  It  is  to  be  regretted  that  so 
trifling  an  interest  should  occasion  this  protracted  litigation,  but  defendant  may 
stand  upon  his  right      He  must,  however,  pay  the  costs  of  the  appeal  and  re-sale. 

It  is  ordered,  that  the  slave  in  question  be  exposed  to  sale  by  the  Commissioner  on 
some  public  sale  day,  on  the  same  terms  that  she  was  before  offered  to  sale  by  the 
defendant ;  and  that  if  more  money  shall  be  bid  for  her  than  was  before  bid  by  the 
defendant,  she  be  sold  to  the  highest  bidder ;  otherwise  defendant's  purchase  to  be 
affirmed. 

Johnson,  J.  &  O'Ne.vll,  J.,  concurred. 

(a)  1  Hill,  Ch.  353. 


1 


*437]  COLUMBIA,  JULY,  1836.  335 

The  re-sale  of  the  negroes,  to  be  made  at  Marion  Conrt  House,  upon 
some  convenient  sale  day,  upon  the  following  terms — to  wit:  upon  a 
credit  of  one  j^ear  from  the  day  of  sale,  with  interest  from  the  said  day  of 
sale  ;  the  purchasers  giving  bond  with  personal  security  to  be  a})proved 
by  the  Court,  to  secure  the  pnrcliase-money. 

The  defendants  appealed,  and  now  moved  to  reverse  the  decree  on  the 
following  grounds  : 

1.  Because,  according  to  the  legal  construction  of  the  will  of  the  tes- 
tator, the  plaintiffs  have  no  legal  claim,  and  their  bill  should  have  been 
dismissed. 

2.  Because,  according  to  the  provisions  of  the  said  will,  all  the  property 
now  sought  to  be  partitioned  was  given  to  the  defendants. 

Graham  and  Gregg,  for  the  appellants,  contended  that  the  intention  of 
the  testator  is  the  controlling  rule  in  the  construction  of  wills  ;  but  that 
intention  must  be  ascertained  and  construed  according*  to  the  r* ioq 
established  rules  of  law.  Bootli  v.  Blundell,  19  Ves.  521,  4  Kent's  L 
Com.  519.  Unless  the  intention  is  clearly  expressed  otherwise,  the 
word  "  heirs"  must  be  construed  technically,  and  be  regarded  a  word  of 
limitation,  and  not  of  purchase.  Preston  on  Est.  365,  368  ;  Thelusson 
V.  Woodford,  4  Ves.  329  ;  llolloway  v.  Holloway,  5  Ves.  401  ;  Deane 
V.  Test,  9  Ves.  152  ;  Crooke  v.  Be  Vandes,  9  Ves.  205  ;  Ilodgson  v. 
Ambrose,  I  Doug.  341  ;  1  Cox,  67. 

Tills  will  was  drawn  before  the  Act  of  1824,  when  words  of  perpetuity 
were  necessary  ;  and  the  word  "  heirs"  was  used  to  convey  the  fee.  What- 
ever inequality  there  may  be  in  the  disposition  of  his  property,  the  Court 
cannot  interfere  to  make  a  will  for  the  testator;  that  was  his  privilege  : 
and  to  allow  the  plaintifts  to  come  in,  a  vague  and  conjectural  meaning 
must  be  affixed  to  the  word  "  heirs  ;"  or  the  Court  must  actually  supply 
other  words.  Words  cannot  be  supplied  on  conjecture,  although  probable, 
Chapman  v.  Brown,  3  Burrows.  Rep.  1634  :  nor  rejected  on  suspicion  of 
mistake,  Milne  v.  Slater,  8  Ves.  306.  To  authorize  the  Court  to  supply 
the  words,  the  mistake  must  be  plain  and  palpable.  Horry  v.  Deas,  2 
Eq.  Rep.  126;  Jackson  v.  Sill,  11  John.  201;  Mellish  v.  Mellish,  4 
Ves.  45. 

In  what  character  are  the  plaintiffs  to  take  ?  The  devise  is  to  his 
"children."  He  had  at  the  execution  of  his  will,  and  at  his  death,  but 
two,  the  defendants  :  it  must  be  that  he  meant  them.  The  word  "  children" 
will  not  include  grandchildren  in  a  devise,  unless  there  can  be  no  other 
construction.  Reeves  u.  Brymer,  4  Ves.  693  ;  Radcliif  v.  Buckley,  10 
Ves.  195  ;  Crook  v.  Brooking,  2  Vern.  lOT  ;  Orford  v.  Churchill,  3  Ves. 
&  Beames,  69. 

The  woi'd  "between''^  is  used  in  this  clause.  Tt  is  not  in  strictness 
synonymous  with  amoiig.  Belween  relates  to  two,  among  to  more  than 
two.  And  this  distinction  is  observed  in  our  statute  of  distriI)utions  ; 
and  is  applied  in  the  construction  of  wills  in  many  cases — 2  Kent'^s  Cora. 
387,  note  ;   1  Bro.  Ch.  117  ;   1  Co.x,  234. 

To  read  the  clause  in  question  as  it  stands,  "and  or  their  heirs,"  it  is 
nonsense.  Strike  out  the  word  '  or^  and  the  meaning  is  intelligible — an 
absolute  fee  is  given  to  the  defendants.  Strike  out  'and/  and  the  devise 
is  to  his  children,  or  to  persons  unknown.     The  Court  may  suppose  an 


336  SOUTH    CAROLINA    EQUITY    REPORTS.  [*43S 

omission — will  it  supply  it  ?  With  whose  names  ?  Nothing  can  benefit 
the  plaintiffs  but  the  addition  of  a  clause  to  the  will,  in  which  their  names 
are  to  be  inserted^  and  then  change  '  or''  into  '  and\ 
*i^ql  *'^f'^6  word  "their"  in  the  clause,  has  a  grammatical  reference 
-^  to  "children."  Why  should  the  word  "heirs"  be  changed  from 
its  technical  meaning,  and  made  a  word  of  purchase  to  include  these 
plaintiffs  ?  There  is  nothing  in  the  will  to  authorize  it.  The  testator 
had  already  provided  for  them,  and  in  doing  so,  he  carefully,  and  it  would 
seem  in  contradistinction  to  children,  used  the  words  "grandchildren.^^ 
If  the  Court  resort  to  conjecture  for  the  testator's  meaning,  why  should 
it  not  as  well  be  supposed  that  he  gave  the  property  to  his  sons  then 
living,  and  in  the  event  of  the  death  of  either  before  his  death,  that  in 
such  case  their  children  should  take  ?  Or  if  the  word  "heirs"  is  to  be 
construed  a  word  of  purchase,  why  should  its  remeaning  be  restricted  to 
the  children  of  James?  Why  not  embrace  all  his  grandchildren? — 
But  to  enable  the  plaintiffs  to  take,  the  technical  meaning  of  the  word 
must  not  only  be  changed  without  any  such  reasons  drawn  from  the  will 
as  should  justify  it,  but  its  meaning  must  be  referred  exclusively  to  these 
plaintiffs.     In  effect,  making  a  will. 

Wilkins,  contra.  Argued,  that  unless  the  construction  of  the  Chan- 
cellor prevails,  there  is  such  uncertainty  and  repugnance  in  the  clause  in 
question  as  to  render  it  void;  and  the  yjlaintiffs  would  then  be  entitled. 
Wherever  there  is  great  uncertainty  the  heir  is  to  be  preferred  in  Eng- 
land.—Pow.  on  Dev.  611;  Cowp  99;  6  Cruises,  Dig.  173.  And  the 
same  rule  must  apply  here  where  all  the  children  are  heirs.  And  the 
strong  inclination  of  our  Courts  in  all  cases  of  doubt  and  uncertainty  is 
to  give  such  construction  as  will  let  in  all  the  testator's  heirs. — Myers  v. 
Myers,  2  M'C.  Ch.  257  ;  2  Binney,  19,  20. 

Some  meaning  and  effect  should,  if  practicable,  be  given  to  all  the 
words  of  the  testator. — 1  Co.  Lit.  9  a,  2  Vern.  545  ;  3  Eng.  Con.  Ch. 
Rep.  573,  Butter  v.  Ommany.  This  can  only  be  done  by  the  interpreta- 
tion put  on  the  will  by  the  Chancellor  ;  for  to  make  the  word  "  heirs  "  a 
word  of  limitation  merely,  as  designating  the  quantity  of  interest  given 
to  his  sons,  would  be  to  discard  a  part  of  the  will.  It  is  not  a  direct  de- 
vise to  his  children  and  their  heirs ;  but  a  direction  that  his  estate  be 
sold  and  equally  divided  between  his  children  and  their  heirs.  Now 
this  was  impracticable,  regarding  the  word  "  heirs  "  as  a  word  of  limita- 
tion, conveying  the  fee  to  the  sons.  Some  other  meaning  then  must  be 
intended,  in  order  to  give  effect  to  the  will.  Discarding  the  word  "  or  " 
*4401  *^^  inserted  by  mistake,  and  the  estate  is  equally  divided  between, 
or  among,  (for  the  terms  are  used  synonymously)  his  children  and 
the  heirs  of  his  children.  Who  answers  the  description  of  heirs  of 
children  ?  Not  the  children  of  Francis  and  William — nemo  est  hceres 
viventis  His  son,  James,  was  dead,  and  left  two  children.  They  are 
the  only  persons  answering  to  the  description  of  heirs  of  children  ;  and 
consequently  they  must  take  jointly  with  the  sons,  in  order  fully  to  carry 
out  the  testator's  intention  as  expressed  in  his  will.  And  this  construc- 
tion is  much  strengthened  by  the  fact  that  the  children  of  his  son,  James, 
are  but  slightly  provided  for  in  the  other  clauses,  and  he  evinces  a  dispo- 
sition to  put  them  on  the  same  footing  as  his  children.     But  apart  from 


*440]  COLUMBIA,  JULY,  1836.  337 

this  view  of  the  case,  he  insisted  that  tlie  phaintift's  might  well  take  under 
the  general  word  "children."  Cited  Horry  v.  Deas,  2  Eq.  Kcp.  123 
note;  Wyth  v.  Blackman,  1  Yes.  sen.  196;  Deveaux  v.  Barnwell,  ]  Eq. 
Rep.  49Y  ;  Roe  v.  Qnartley,  1  T.  R.  634  ;  Radclifie  v.  Bnckley,  10  Ves. 
195  ;   Goodtitle  v.  Herring,  1  East  264;  Keith  v.  Perry,  1  Eq.  Rep.  353. 

Chancellor  Johnston  delivered  the  opinion  of  the  Court. 
This  Court  concurs  with  the  Chancellor  who  delivered  the  Circuit  de- 
cree ;  the  motion  is  therefore  dismissed. 

Chancellors  Johnson  and  Harper,  and  Justices  O'Xeall,  Gantt,  and 
Richardson,  concurred. 

Butler,  J.,  dissenting.  I  cannot  subscribe  the  opinion  of  the  Court 
in  this  case.  I  think  the  construction  given  to  the  will,  equally  op])osed 
to  the  actual  intention  of  the  testator,  and  the  legal  import  and  tcclinical 
meaning  of  the  language  he  uses. 

In  the  three  first  clauses  of  the  will,  the  testator  gives  to  his  grand- 
children, all  that  he  intended  specifically  for  them  ;  and  in  the  fourth 
clause,  it  seems  to  have  been  his  design  to  give  the  residue  of  his  prop- 
erty to  his  wife  and  children.  That  is,  after  the  determination  of  the 
life  estate  to  his  wife,  to  divide  the  remainder  between  his  children, 
Erancis  and  William,  share  and  share  alike.  He  uses  language  suffi- 
ciently significant  to  convey  his  meaning.  After  his  wife's  death,  the 
testator  directs  his  executor  to  sell  and  divide  the  estate  between  his 
children  "  and  or  their  heirs."  AVhat  children  did  he  mean?  Did  he 
mean  his  children  *alive  at  the  time,  or  did  he  have  reference  to  a  r^,,-i 
deceased  child  ?  Or  did  he  include  in  the  word  "children"  his  '- 
grandchildren,  whom  he  had  s{)ecially  called,  in  the  clause  above,  his 
grandchildren.  He  obviously  meant  his  surviving  children.  To  whom 
then  should  the  adjective  pronoun  their  have  reference  ?  By  every  rule 
of  grammar,  it  relates  to  and  includes  only  his  children  ;  and  of  conse- 
quence then  it  is  to  his  children  and  their  heirs,  that  he  gives  the  re- 
mainder of  his  property.  To  read  the  clause  in  this  way,  is  to  give  to 
the  word  heirs  its  ordinary  legal  signification,  to  make  it  a  word  of  lim- 
itation and  not  of  purchase.  I  do  not  say  that  it  may  not  be  a  word  of 
purchase.  The  intention  to  make  it  a  word  of  purchase  should  be  very 
obvious,  and  the  persons  to  take  by  it  should  be  clearly  indicated,  before 
the  legal  construction  of  it  should  be  violated.  If  the  testator,  in  the 
case  under  consideration,  intended  to  refer  specifically  to  an}''  persons  to 
take  by  the  word  "heirs,"  it  was  the  children  alone  of  his  surviving  chil- 
dren. That  is,  in  the  event  of  cither's  death,  their  children  to  come  in 
and  represent  the  parent.  But  I  am  averse  to  considering  contingencies 
until  they  happen.  If  either  William  or  Francis  had  died  l)efore  their 
father,  it  is  probable  the  father  would  have  altered  his  will  in  conformity 
to  that  circumstance.  To  make  the  word  "heirs"  refer  exclusively  to 
James'  children,  is  not  only  to  change  its  meaning,  but  to  give  its  refer- 
ence;  and  in  effect,  it  is  to  add  a  clause  to  the  will.  It  is  asked,  why 
should  the  testator  make  such  a  difference  between  his  surviving  children, 
and  the  representatives  of  his  son,  James  ?  I  can  only  answer,  that  as 
far  as  the  testator  was  explicit,  he  certainly  made  a  discrimination  be- 


338  SOUTH    CAROLINA   EQUITY   REPORTS.  [*441 

tween  his  grandchildren.  To  one  grandchild  he  gives  a  negro ;  to 
William's  children  he  gives  another  negro,  and  to  James'  two  children  he 
gives  $100  each.  Whether  this  was  the  result  of  caprice  or  justice,  I 
will  not  inquire.  It  may  have  been,  and  probably  was  the  latter.  This 
depends  upon  the  advancements  which  the  testator  may  have  made,  and 
many  other  circumstances  of  which  we  can  take  no  notice.  I  am  not  for 
going  out  of  my  way  in  any  etfort  (perhaps  vain  and  futile)  to  do  imag- 
inary justice.  I  like  that  justice  which  is  prescribed  by  legal  definition 
and  usage.  This  gives  the  security  of  rule  ;  the  other  opens  the  door  to 
the  uncertainty  of  discretion.  The  Court  makes  the  word  heirs  refer 
exclusively  to  James  Johnson's  children,  and  I  make  it  refer  exclusively 
*i49i  ^*^  ^^^  ^representatives  of  Francis  and  William,  whoever  they 
-'  might  be  ;  (that  is,  if  William  and  Francis  had  not  alienated  the 
property  before  their  death,)  and  this  regards  the  word  as  a  word  of 
limitation  indicative  of  the  quantity  of  estate  given.  But  if  it  should  be 
regarded  as  a  word  of  purchase,  I  think  Francis'  and  William's  children 
would  take  by  it  in  preference  to  James'.  I  am  for  letting  the  fourth 
clause  read  as  though  the  word  or  was  not  in  it ;  and  if  the  word  or  is 
to  have  any  meaning,  it  cannot  make  the  word  heirs  refer  exclusively  to 
the  daughters  of  James,  and  let  them  come  in  and  take  an  equal  share 
with  Francis  and  William.  The  pecuniary  legacy  given  to  them  by  their 
grandfather,  was  all  that  he  intended  specifically  for  them. 

Evans,  J.,  also  dissented,  but  gave  no  reasons. 

Earle,  J.,  absent.  1 


CASES    IN    CHANCERY 


ARGUED  AND  DETERMINED  IN  THE 


COURT  OF  APPEALS  OF  SOUTH  CAROLINA. 


©olntnbia — December,  1836. 


CHANCELLORS  AND   LAW   JUDGES   PRESENT. 


Hon.  henry  W.  DE  SAUSSTJRE, 
Hon.  DAVID  JOHNSON, 
Hon.  WM.  HARPER, 
Hon.  J.  JOHNSTON, 
Hon.  J.  B.  O'NEALL, 


Hon  RICHARD  GANTT, 
Hon.  J.  S.  RICHARDSON, 
Hon.  JOSIAH  J.  EVANS, 
Hon.  B.  J.  EARLE, 
Hon.  a.  p.  BUTLER. 


John  M.  Niolon  vs.  James  K.  Douglas,  and  Others, 

A  debtor  may  lawfully  assign  his  whole  estate  for  the  benefit  of  such  creditors  as 
shall  release  him.  [*443] 

A  debtor  executed  an  assignment  of  his  whole  estate  to  trustees,  in  trust  for  the 
benefit  (after  discharging  existing  liens)  of  all  such  creditors  as  should,  within  six 
months,  establish  their  demands,  accept  dividends  and  give  releases  in  full ;  and 
excluding  others  who  should  refuse  to  comply  with  these  terms: — On  a  bill  by  a 
creditor,  who  refused  to  accept,  to  set  aside  the  deed  of  assignment  as  fraudulent 
and  void,  it  was  held  to  be  valid.  [*444] 

A  fiiiling  debtor  may  give  preferences  among  his  creditors,  and  it  seems  impractica- 
ble to  prevent  the  exercise  of  this  right.  The  subject  considered  in  reference  to 
a  bankrupt  system.  [*44G] 

The  cases  where  assignments  of  debtors  which  required  creditors  to  release, 
reviewed.  [4-2] 

In  all  the  cases  the  vice  lies  not  merely  in  requiring  a  release,  but  in  putting 
the  assets  in  such  way  as  to  be  inaccessible  to  ordinary  process,  and  then 
establishing  such  control  over  them  in  the  grantor,  that  he  could  at  his  pleasure 
make  or  withhold  payment.  [*453] 

Our  insolvent  debtor's  act  recognizes  the  right  of  a  debtor  to  assign  for  the  benefit 
of  releasing  creditors.  [*454] 

Heard  by  Chancellor  Johnston,  at  Camden,  February,  1835. 

The  bill  was  filed  7th  July,  1834,  and  states  the  following  circum- 
stances : — 

On  the  30th  April,  1833,  Ralph  Johnson  executed  an  assignment  of 
his  whole  real  and  personal  estate,  particularly  two  town  lots  in  Camden, 
eight  slaves,  household  and  kitchen  furniture,  working  tools,  debts,  &c., 
to  James  K.  Douglas,  Benjamin  Bineham,  John  J.  Blair,  and  James  S. 
Stewart,  in  t7'ust,  to  sell  the  same  on  the  best  terms  they  could  obtain, 


340  SOUTH   CAROLINA    EQUITY   REPORTS.  [*443 

either  at  public  or  private  sale,  and  on  such  credit  as  they  may  deem 
pro[)er,  and  to  collect  in  the  debts  due  to  him,  and  to  pay  therefrom — 

1.  All  existing  judgments  against  him. 

2.  To  pay  all  the  costs  and  charges  of  executing  the  assignment. 

^ ,  -,  *  "  3.  Shall  pay  out  of  the  remainder  of  said  moneys  in  rateable 
-'  and  equal  proportions,  to  all  such  creditors  of  the  said  Ralph 
Johnson,  upon  bonds,  notes,  obligations  and  accounts,  as  shall  render  in 
the  same  to  the  said  assignees,  and  establish  their  demands,  within  six 
months  from  the  date  of  these  presents ;  and  who  shall  at  the  time  of 
establishing  said  demands,  signify  and  accept  in  writing,  that  the  divi- 
dend so  to  be  received,  shall  be  a  free  discharge  of  their  said  claim  against 
the  said  Ralph  Johnson;  and  upon  the  ultimate  payment  of  said  dividend, 
shall  grant  such  full  and  final  release  :  hereby  debarring  and  excluding 
all  and  every  creditor  of  the  said  Ralph  Johnson,  from  any  advantage  or 
benefit  whatever,  under  any  provision  of  this  assignment,  who  sha-11  neg- 
lect or  refuse  to  I'ender  in  and  establisli  his,  her,  or  their  demand,  and 
signify  and  assent  in  the  manner  prescribed  aforesaid,  to  accept  of  their 
dividend  as  a  full  and  final  discharge  of  their  claim  against  the  said  Ralph 
Johnson."  The  assignees  accepted  the  trust,  and  undertook  the  execu- 
tion of  it  on  the  3d  May,  1 833. 

Soon  after  the  execution  of  the  deed,  the  sheriff  of  Kershaw  levied  on 
the  house  and  town  lots,  and  seven  of  the  slaves,  and  sold  them  to  satisfy 
executions  in  his  office  against  Ralph  Johnson,  older  than  the  deed  ol 
assignment;  and  paid  them  in  full  from  the  sales  thereof.  In  the  year 
1S33,  the  assignees  sold  the  remainder  of  the  property  under  the  deed, 
which  produced  a  large  sum  of  money,  how  much  plaintiff  does  not  know  ; 
and  now  hold  the  same  ready  to  pay  over  to  the  creditors  of  Johnson, 
who  have  accepted  the  terms  of  the  assignment. 

On  the  4th  April,  1834,  plaintiff  obtained  and  entered  up  a  judgment 
against  Ralph  Johnson,  in  Kershaw  district,  for  $2172  99,  with  interest 
on  $1784  30,  from  31st  March,  1834,  with  $17  costs  of  suit,  on  notes  of 
hand  which  arose,  and  are  dated  previous  to  the  date  of  the  deed. 
Plaintiff  refused  to  accept  under  the  deed,  and  issued  his  fi.  fa.  to  the 
sheriff,  which  is  still  unsatisfied,  and  was  returned  nulla  bona. 

On  the  4th  April,  1834,  Aaron  Burr,  administrator  of  D.  Button, 
recovered  and  entered  up  a  judgment  against  Johnson,  for  the  sum  of 
$102  and  interest,  together  with  $15  96  costs  of  suit,  and  issued  his  Ji.  fa. 
thereon,  which  is  still  unsatisfied. 

On  the  2d  November,   1833,   G.    H.   Dunlap  &   Co.   recovered   and 
entered   up   a   judgment    against    Johnson,    for   $57   94,    interest    and 
*4451  *costs  of  suit,  and  issued  execution  thereon,  which  is  still  un- 
-'  satisfied. 

Plaintiff  alleges  that  the  deed  is  void  in  law,  because  Johnson  conveyed 
his  whole  real  and  personal  estate  in  trust,  to  pay  only  such  creditors  as 
shall  accept  a  dividend  of  their  claims,  and  thereupon  grant  a  full  dis- 
charge of  their  whole  demand  ;  thereby  delaying  and  hindering  creditors 
from  recovering  their  full  claims ;  which  plaintiff  submits  is  such  a  fraud 
upon  creditors,  as  avoids  the  deed  wholly :  that  if  this  be  true,  the 
moneys  in  the  hands  of  the  assignees  is  liable  to  be  paid  over  to  these 
executions.  Plaintiff  has  applied  to  the  assignees  to  pay  his  execution, 
but  they  refuse  to  do  so  ;  plaintiff  therefore  prays  that  the  assignees  may 


*44d]  COLUMBIA,    DECEMBER,    1836.  341 

be  ordered  to  pay  over  to  this  execution,  and  tlic  two  otlier  executions, 
the  funds  in  their  hands,  according  their  priority. 

The  joint  answer  of  J.  K.  Donglas,  B.  Bineham  and  J.  S.  Stewart, 
admit  the  facts  set  forth  in  the  bill,  refer  to  the  answer  of  Blair  for  their 
doings  in  the  assignment,  and  insist  that  the  assignment  of  Johnson  is 
not  "calculated"  to  hinder,  delay  or  defraud  creditors,  and  is  valid  in  law 
and  equity;  and  pray  to  be  hence  dismissed  with  their  costs. 

The  answer  of  John  J.  Blair  alleges,  that  the  assignees  acted  in  strict 
pursuance  of  the  Act  of  Assembly  of  1828,  on  the  sulycct  of  assignments  ; 
and  by  their  order  the  property  was  sold — and  therefrom  he  has  in  hand 
twelve  hundred  dollars,  eighty-eight  cents,  to  be  paid  on  the  debts  due 
by  Johnson.  That  claims  against  Ralph  Jolinson  have  been  presented 
to  the  assignees  by  the  creditors,  amounting  to  $1243  63  without  interest, 
who  have  accepted  the  terms  of  the  deed.  He  insists  that  the  assignment 
is  valid  in  law  and  equity,  and  prays  to  be  dismissed  with  his  costs. 

The  answer  of  Ralph  Johnson  admits  the  facts  set  forth  in  the  bill,  and 
says  the  deed  was  not  intended  to  hinder,  delay  or  defraud  his  creditors, 
but  contained  a  bona  fide  surrender  of  his  whole  property,  and  his  ol)ject 
was  to  put  his  creditors  on  an  equal  footing,  which  he  insists  he  had  a 
right  to  do  in  law,  &c. 

The  case,  after  the  reading  of  the  bill  and  answers,  was  argued 
February  23d  and  24th,  1835,  by  Wethers  and  John  M  De  Saussure 
for  the  plaintiff,  and  by  ilf  Willie  for  the  defendants.  It  was  admitted 
that  all  the  plaintiff's  demands  on  which  he  recovered  judgment  were  due 
before  the  assignment,  and  that  Burr  and  *the  others  stated  in  the  r^iip 
bill,  were  also  subsisting  creditors.  The  following  decree  was  ^ 
afterwards  delivered  : — 

Johnston,  Chancellor.  The  authorities  cited  at  the  hearing  of 
Vaughan  v.  Evans,  1  Hill  C.  R.  414,  certainly  left  on  my  mind  a  strong 
impression  that  the  mere  exaction  of  a  release  from  accepting  creditors, 
would  invalidate  the  assignment  of  an  insolvent  debtor.  Under  the 
influence  of  that  impression,  I  put  the  defendant's  counsel  to  open  the 
argument  of  this  case.  The  result  of  a  careful  considerarion  of  all  that 
was  advanced  on  both  sides,  is  a  thorough  conviction  that  such  a  position 
is  unfounded,  either  on  princii)le  or  decided  cases. 

I  am  happy  to  find,  on  a  recurrence  to  Yanghan  r.  Evans,  that  as  the 
Court  was  not  called  upon  to  express,  so  it  did  not  express  an  opinion 
as  to  the  soundness  of  the  position  I  have  mentioned.  As  I  shall  have 
occasion  to  advert,  hereafter,  to  the  authorities  referred  to  in  that  case,  I 
shall  take  that  opportunity  to  show  that  neither  those  authorities  nor 
that  case  establish  the  doctrine  in  question. 

Whatever  doubts  may  have  been  entertained  or  expressed,  respecting 
the  morality  or  the  policy  of  permitting  a  failing  debtor  to  prefer  some 
of  his  creditors  over  others,  his  legal  right  to  do  so  is  too  well  settled  to 
admit  of  discussion. 

Chancellor  Kent,  while  he  expressed  the  strongest  repugnance  to  the 
exercise  of  such  a  power  by  the  debtor,  was  compelled  to  admit  its 
legality  :  and  our  own  Supreme  Court  was  constrained  by  the  force  of 
authorities  to  adopt  a  similar  conclusion. — 2  John.  Ch.  Rep.  578,  283; 
1  M'C.  Ch.  Rep.  441,  442. 
YoL.   1.— 45 


342  SOUTH   CAROLINA   EQUITY   REPORTS.  [*446 

There  is  undoubtedly  great  force  in  the  objection  brought  against  this 
power  to  prefer.  But  a  contrary  judgment  has,  for  a  great  length  of 
time,  and  very  uniformly,  been  })ractically  pronounced  by  those  most 
deeply  interested ;  and  who  must,  therefore,  be  taken  to  have  attentively 
considered  the  subject  in  all  its  bearings  upon  the  actual  concerns  of  life. 

When  we  turn  to  the  jurisprudence  of  England,  we  find  that  that 
people  has  never  deemed  it  prudent  or  practicable  to  lay  sweeping 
restrictions  upon  preferences,  except  in  cases  of  traders.  For  that  class 
of  persons  the  Legislature  has  provided  a  specific  statutory  code  :  but  in 
cases  not  falling  within  it,  a  much  viider  range  of  preference  has  ever 
*ii^l  ^^^^^^  allowed  by  the  Courts,  than  in  most  of  these  *States;  yet 
-I  nothing  has  come  from  Parliament  to  show  that  it  regarded  these 
judicial  decisions  as  subversive  of  true  policy.  Indeed,  the  very  fact  that 
their  bankrupt  laws  have  been  confined  to  traders,  shows  that  in  their 
estimation  they  are  unsuited  to  the  mass  engaged  in  the  other  avocations 
of  life  :  else,  why  draw  the  distinction  ? 

Two  things  seem  essential  to  a  bauKrupt  system.  First — that  the 
subjects  of  it  should  be  such  as  from  the  nature  of  their  business,  and  the 
habits  incident  to  its  successful  prosecution,  have  it  in  their  power  to  be 
informed,  and  are  generally  informed,  when  insolvency  has  supervened. 
This  information  gives  them  warning  when  to  stop.  It  shows  them  pre- 
cisely when  that  crisis  has  occurred,  after  which  any  business  operation 
done  by  them,  if  allowed  to  stand,  must  effect  a  preference  of  some  one 
creditor,  at  the  expense  of  some  other ;  and  therefore  their  engaging  in 
such  operation,  having  such  information,  demonstrates  that  they  intended 
to  give  a  preference.  It  is  not  with  them  as  it  is  with  others,  who,  not 
having  the  means  of  being  constantly  informed  of  their  exact  situation, 
nor  the  habits  leading  them  to  a  constant  comparison  of  their  effects  with 
their  debts,  may  ignorantly  and  bona  fide  do  an  act,  in  the  prosecution 
of  their  ordinary  business,  which  may  result  in  a  preference  among  their 
creditors.  With  regard  to  the  mass  of  the  community,  this  difficulty 
occurs,  therefore,  which  does  not  exist  as  respects  traders.  You  must 
allow  them  to  give  preferences,  and  that  wilfully,  or  you  must  put  an  end 
to  all  their  dealings  ;  for  if  allowed  to  deal  at  all,  preferences  will  neces- 
sarily result,  and  it  will  be  impossible  to  separate  those  which  are  designed, 
from  those  which  are  not.  If  you  could  pronounce,  as  in  the  case  of 
traders,  that  all  preferences  given  by  them  must,  probably,  have  been 
given  wilfully,  you  might  set  your  face  against  them  all ;  but  this  you 
cannot  do.  See  the  difficulty.  Will  you  declare  that  no  debtor  shall 
confess  a  judgment,  or  give  a  bond  or  a  mortgage  ?  If  he  is  allowed  to 
do  so,  a  preference  may  result.  But  if  you  prohibit  him,  every  debtor 
must  (at  the  peril  of  costs  which  must  fall  on  him,  or,  if  insolvent,  on  the 
mass  of  his  creditors)  stand  suit,  and  obstinately  and  dishonestly  defend 
himself  against  every  just  demand.  Again,  will  you  require  every  plain 
man,  when  payment  is  demarided,  to  stand  still  and  enter  into  a  calculation 
how  much  he  is  worth,  and  how  much  he  owes,  before  he  can  venture  to 
*4481  P^^'^  *^"^  ^^^^  money  he  has  in  his  pocket  and  *make  payment  ?  If 
-^  he  is  not  prohibted  from  paying,  it  may  turn  out  that  from  his 
reserved  property  proving  insufficient,  a  preference  has  been  given.  In 
short,  can  you,  as  to  the  mass  of  men,  prevent  preferences,  without  putting 
verbal  and  written,  parol  and  special  contracts,  all  on  a  footing;   and 


*448]  COLUMBIA,  DECEMBER,   1836.  343 

then  attacliing  a  lien  (and  the  same  lien)  to  all ;  or  abolishing  all  liens  ? 
If  you  do  this,  you  stop  all  commerce.  As  long  as  the  law  recognizes  a 
distinction  between  sealed  and  unsealed  instruments ;  between  bonds,' 
mortgages  and  judgments,  and  between  the  liens  of  judgments  and  exec-u- 
tions,  preferences  are  inevitable.  The  very  execution  of  the  instrument 
may  raise  the  jjreference. 

The  second  thing  essential  to  a  l)ankrupt  system,  seems  to  be,  that  those 
to  whom  it  is  to  be  ajjplicd  shall  iorm  a  distinct  class,  engaged  in  well 
defined  and  unmixed  pursuits.  Even  in  England,  where  avocations  have 
a  distinctness  as  yet  utterly  unknown  to  us,  much  confusion  exists  in  tlie 
application  of  their  system,  and  much  injustice  arises  from  its  enforce- 
ment, owing  to  the  intricate  relation  which  must  exist  between  its  subjects 
and  all  other  portions  of  the  community.  But  here,  where  as  yet  men 
are  in  the  daily  habit  of  changing  their  pursuits,  and  where  in  fact  almost 
every  man  is  engaged  in  a  variety  of  avocations  at  the  same  time  ;  where 
there  is  no  such  thing  as  a  regular  division  of  labor  or  employments,  and 
where,  from  the  intricacy  and  variety  of  the  relations  of  citizen  to  citizen, 
no  provision  of  law  can  be  applied  to  any  one  without  greatly  afiecting 
others,  it  is  very  doubtful  whether  anything  like  a  bankrupt  system  is 
suited  to  our  condition  ;  or  whether  any  restrictions,  other  than  those 
which  experience  has  shown  to  be  expedient  for  the  mass  of  men,  can  be 
adopted.  What  says  experience  on  this  subject  ?  The  federal  govern- 
ment, after  testing  the  expediency  of  a  bankrupt  system  by  ex))erience, 
suffered  it  to  expire,  and  has  not  renewed  it.  4  Wheat.  122.  Aiul 
although  each  State  has  the  right,  when  no  such  system  is  in  exercise  by 
the  federal  government,  to  institute  one  for  itself,  it  is  believed  not  a 
single  iState  has  at  any  time,  by  statute,  forbidden  all  preference  among 
creditors.  The  insolvent  laws  of  most  of  the  States  either  allow  the 
debtor  to  draw  a  distinction  among  his  creditors,  iu  the  very  act  of  sur- 
rendering under  the  law  itself  or  sustain  it  if  already  drawn.  So  much 
for  the  legislatures.  AVith  regard  to  the  opinion  of  the  judiciary,  it  is 
remarkable,  that  in  those  States  where  the  Courts  set  out  with  a  simple 
allowance  of  ^preferences,  no  change  has  been  found  necessary;  r^jj^/q 
while  in  those  in  which  they  attempted  to  put  them  down  by  •- 
straining  after  exceptions  to  the  acknowledged  law,  they  have  found  it 
impracticable  to  carry  out  their  decisions  to  a  system  ;  and  many  of  them 
have  either  vaccillated  or  been  compelled,  more  or  less,  to  retrace  their 
steps* 

Surely  there  is  something  in  all  this  calculated  to  raise  a  doubt  whether 
tliere  is  not  some  fallacy  somewhere,  iu  that  reasoning  which  indiscrimi- 
nately condemns  all  preferences.  Snrely,  when  we  see  such  a  long  and 
uniform  toleration  of  the  reprobated  practice,  we  must  set  it  down  either 
to  the  genius  of  our  people,  or  to  a  settled  conviction  in  those  most  con- 
versant with  the  subject,  that  if  it  produces  injustice,  it  is  such  injustice 
as  human  laws  cannot  remove,  unless,  indeed,  at  the  hazard  of  greater 
evils;  and  thus  we  shall  be  brought  the  more  cheerfully  to  acquiesce  in 
what  our  own  judgments,  or  our  own  feelings,  may  not  in  all  respects 
approve. 

Chancellor  Kent,  2  Johns.  Ch.  Rep.  578,  states  his  objection  to  pre- 
ferences among  creditors  with  his  accustomed  force.  "  Experience,"  says 
he,  "shows  that  preference  is  sometimes  given  to  the  very  creditor  who 


*450] 


344  SOUTH    CAROLINA    EQUITY    REPORTS.  [*449 

is  the  least  entitled  to  it,  because  he  lent  the  debt'oi"  a  delusive  credit; 
and  that  too,  no  doubt,  under  assurances,  or  a  well  grounded  confidence 
of  priority  of  payment  and  perfect  indemnity  in  case  of  failure.  How 
often,"  he  continues,  "has  it  hapjiened  that  that  creditor  is  secured,  who 
was  the  means  of  decoying  others,  while  the  real  business  creditor,  who 
parted  witli  his  property  on  liberal  terms  and  in  manly  confidence,  is 
made  the  victim  ?"  Now,  is  it  not  apparent  that  in  the  Chancellor's  own 
mind  there  is  a  wide  distinction  between  the  two  classes  of  creditors  he 
has  mentioned  ?  That  one  is  more  and  the  other  less  entitled  to  be  pre- 
ferred ?  That  he  would  approve  a  preference,  if  made  on  grounds  which 
he  could  sanction  ?  And,  after  pointing  out  so  forcibly  the  distinction 
between  him  who  colludes  with  the  debtor  and  the  fair  business  man,  who 
is  entrapped,  is  his  conclusion  a  sound  one,  that  the  proper  corrective  is 
not  to  examine  the  evidences  of  the  collusion,  and  frustrate  the  fraud ; 
but  to  put  the  least  meritorious  and  the  most  meritorious — him  \y}\o  per- 
petrates, and  him  who  is  the  victim  of  fraud,  all  on  the  same  footing? 

Let  us  hear  the  Chancellor  further: — "Perhaps,"  says  he,  "some 
influential  creditor  is  placed  upon  the  privileged  list,  to  ^prevent 
disturbance,  while  those  who  are  poor,  or  are  minors,  or  are 
absent,  or  want  the  means  or  the  spirit  to  engage  in  litigation  are  aban- 
doned." This  picture  is  well  drawn,  and  addresses  itself  to  our  best 
feelings.  But  I  apprehend  the  Chancellor  would  not  vacate  a.  judgment 
obtained  by  the  creditor  he  singles  out.  And  if  not,  it  deserves  to  be 
considered  whether  the  absent,  or  the  minors,  or  those  wanting  in  means 
or  spirit  for  litigation,  are  not  just  as  likely  to  be  left  behind,  if  the  pre- 
ference is  left  to  be  established  by  priority  in  ohtnining  judgments. 

In  some  of  the  cases  wherein  the  assignments  of  debtors  have  been  set 
aside,  the  instant  effect  of  the  decision  was  to  create  an  inequality  among 
the  creditors,  and  to  give  a  preference  to  the  creditor,  whose  ground  of 
complaint  was  that  all  were  not  put  on  a  footing.  20  John.  Rep.  451. 
The  Court,  struck  with  the  glaring  inconsistency  of  this,  with  that 
equality  at  v/hich  it  vainly  aimed,  has  usually  attempted  to  console  itself 
and  the  suitors  and  to  cover  over  the  contradiction,  with  the  maxim, 
viqilantihus  von  dormientibus,  leges  subserviuiit.  But  what  is  that, 
but  to  admit  that  the  law  allows  the  vigilant  to  be  x)referred  ?  It  is 
preference  still. 

Now,  while  I  deny  that  it  is  a  natural  application  of  the  maxim,  vigi- 
Jantibus,  non  dormientibus,  to  give  the  benefit  of  it  to  him  whose  only 
necessity  for  coming  into  Court  was,  that  another,  by  superior  vigilance, 
had  obtained  superior  rights,  of  which  a  Court  only  could  deprive  him, 
and  to  deny  it  to  that  other ;  while  I  contend  that  this  is  an  inversion  of 
the  maxim — while  I  contend  that  the  creditors  who  took  the  assignment 
in  this  case,  have  not  been  less  vigilant,  but  more  vigilant,  than  the  cred- 
itor who  has  obtained  a  judgment ;  I  am  at  a  loss  to  perceive  what  moral 
principle  it  is,  upon  which  those  would  proceed,  who  would  set  aside 
conveyances  and  liens  existing — who  would  disturb  things  as  they  find 
them,  merely  because  they  give  a  preference — and  subsUtute  in  their 
room  a  preference,  to  which  the  only  title,  is  vigilance.  Yigilance  is  a 
very  good  thing ;  and  if  left  to  depend  on  that,  preferences  would  not  be 
disturbed.  But  if  they  are  to  be  disturbed,  is  vigilance  the  only  moral 
quality  entitled  to  consideration  ?     Suppose  the  preferences  complained 


*f^ 


450]  COLUMBIA,    DECEMBER,    1836.  345 

of,  besides  being  founded  on  superior  vigilance,  and  sound  legal  conside- 
rations, rest  on  motives  of  generosity,  humanity,  gratitude,  piety  to 
parents,  parental  or  conjugal  allectiou,  shall  these  all  go  for  nothint,^ '? 

The  plain  truth  seems  to  be,  that  it  is  impracticable  as  to  the  mass  of 
men,  to  put  all  creditors  on  a  perfect  ecpiality  :  and  if  it  *\vas  ])rac-  ^^  . 
ticable,  injustice  would  often  follow,  10  Mod.  459.  Undoubtedly  L 
the  power  to  prefer,  may  be  perverted  and  abused,  even  where  the  abuse 
discloses  no  fraud  upon  which  a  Court  can  seize:  but  "the  power,  as  it 
may  be  abused,  so,  on  the  other  hand,  may  be  very  properly  exercised." 
The  discretion  must  be  left  to  the  debtor,  within  the  limits  of  fraud. 
Society  must  depend  for  its  indemnity  upon  the  teachings  of  the  debtor's 
heart  and  conscience;  upon  those  moral  lights,  which  all  men  possess; 
upon  that  native  sense  of  justice  ;  upon  those  better  feelings,  which  exert 
a  silent  supremacy  over  even  the  worst  of  men.  After  all,  most  of  the 
great  interests  and  operations  of  society,  depend  mainly  upon  these.  'J'he 
law  can  only  act  in  flagrant  cases.      15  John.  Rep.  571. 

But,  without  protracting  these  observations,  I  found  myself  upon  this: 
that  whatever  may  be  thought  of  the  morality  or  expediency  of  permit- 
ting a  debtor  to  grant  preferences,  his  leiral  right  to  do  so  is  unquestion- 
able. 2  P.  W.  427;  10  Mod.  489;  5"t.  R.  424;  8  T.  R.  528;  3 
John.  Rep.  84. 

Then,  Ralph  Johnson's  assignment  would  not  have  been  invalid,  if  he 
had  simply  preferred  his  other  creditors  over  the  plaintitf.  It  would  have 
been  clearly  valid,  if  he  had  surrendered  to  the  other  creditors  without 
condition.  I  suppose  it  would  have  been  equally  valid,  as  against  the 
plaintiff,  if  in  his  surrender  to  them  as  privileged  creditors  he  had  re- 
quired releases  from  them.  Such  a  requisition,  so  far  from  being  the  sub- 
ject of  just  complaint  with  the  plaintiff,  would  have  operated  greatly  to  his 
advantage,  by  freeing  the  debtor's  after  acquisitions  from  claiuis  which 
might  otherwise  have  stood  in  the  way  of  his  obtaining  satisfaction  of 
his  debt. 

Then,  if  it  would  have  been  no  fraud  on  him  to  prefer  others  over  him, 
with  or  without  conditions,  is  he  defrauded  by  giving  him  an  o|)portmiily 
to  participate  with  them  ? — An  opi)ortunity  which  it  would  not  have 
been  fraudulent  in  Johnson  to  have  withheld  from  him  ? 

If  he  refuses  to  accept  the  condition,  he  is  only  thereby,  and  that  by 
his  own  act,  reduced  to  an  uupreferred  creditor.  Not  only  is  he  left  un- 
injured, but,  as  I  remarked  before,  he  is  positively  benefitted  by  the  con- 
dition, although  he  has  not  accepted  it :  the  acceptance  of  it  by  others, 
having  warded  off  competing  claims  from  the  debtor's  after  acquisitions. 

I  am  uot  aware  of  any  decision  in  this  State,  which  concludes  any  thing 
on  this  point.  Certaiidy  it  did  not  arise  in  the  consideration  *of  r=(:  i;x.) 
Evans' assignment.  1  Hill  C.  R.  414.  The  authorities  quoted  L 
against  that  assignment,  consisted  of  cases  in  which  del)tors  had  required 
a  release  from  their  creditors.  There  was  no  such  provision  in  Evans' 
deed;  and  the  Court  took  notice  of  the  fact,  that  the  cases  quoted  turned 
upon  the  requirement  of  a  release,  for  the  pur[)Ose  of  showing  that  they 
did  not  apply  to  that  deed.  The  Court  did  not,  as  the  occasitm  did  not 
demand  it,  enter  into  an  examination  of  the  circuuistances  under  which, 
in  the  cases  quoted,  the  releases  were  exacted  ;  so  as  to  determine 
whether  that  simple  requirement,  without  any  other  circumstauce,   would 


346  SOUTH    CAROLINA    EQUITY    REPORTS.  [*452 

invalidate  an  assignment.  It  pronounced  no  opinion  respecting  the 
soundness  or  unsoundness  of  the  decisions  referred  to.  It  merely  pointed 
out  their  inapplicability  to  the  case  on  trial. 

Nevertheless,  the  impression  they  left  on  me  certainly  was,  that  the  mere 
requiring  a  release  would  avoid  an  assignment :  and  such,  I  believe,  was 
the  impression  they  ])roduced  on  the  Court  of  Appeals. 

But  upon  a  careful  examination  of  the  cases  I  have  mentioned,  and 
such  others  as  are  accessible  to  me,  I  have  not  found  one  wherein  fraud 
was  inferred,  merely  from  such  requirement.  I  will  first  turn  to  the  cases 
referred  to  in  Vavghan  v.  Evans,  1  Hill  C.  K.  420,  for  the  purpose  of 
setting  out  more  particularly  than  I  did  in  the  decision  of  that  case,  the 
])rovisions  which  the  assignors  coupled  with  the  requisitions  of  a  release, 
in  order  to  ena'ole  them  to  drive  their  creditors  to  terms. 

In  Lord  o.  The  Watchman,  American  Jurist,  No.  16,  p.  284,  the 
trustees  were  to  sell  the  property,  and  after  paying  such  creditors  as 
might  accept  upon  the  conditions  required,  'pay  over  the  surplus,  (not- 
withstanding there  might  be  dissenting  and  unpaid  creditors)  to  the  as- 
signor. 

Hyslop  V.  Clark,  14  John.  R.  4,59.  The  assignment  contained  a  pro- 
vision, that  if  any  of  the  scheduled  creditors  should  refuse  to  release,  the 
trust  for  paying  them  ratably  should  not  he  executed  by  the  trustees  ; 
but  instead  thereof,  in  that  event,  the  trustees  should  hold  the  assigned 
property  in  trust,  to  pay  Hyslop  &  Co.  in  the  first  place,  and  then  such 
oi\\QX  cve^MoxB  ?i'^  i\i%  assignors  should  appoint ;  and  upon  the  further 
trust,  in  any  event,  to  pay  the  surplus  (without  regarding  dissenting  or 
unpaid  creditors)  over  to  the  assignors. 

In  Seaving  v.  Brinckerhoff,  5  John.  Ch.  Rep.  332,  not  only  was  the 
assigned  property  bound  by  judgment  and  execution,  but  the  assignment 
^,rq-i  provided  *that  the  trustee  should  sell  the  property,  and  "if  the 
-'  creditors  would  not  accept  upon  the  condition  imposed,"  Cthat  of 
releasing  and  receiving  ratably,)  "the  moneys  were  to  be  held  in  trust 
for  the  grantors." 

Thus,  it  appears,  that  the  debtors,  unless  the  creditors  would  obey 
their  commands,  secured  to  themselves,  a  right  to  have  their  property  re- 
duced to  a  new  form  intangible  by  their  creditor's  executions,  and  diffi- 
cult of  access  by  any  process,  and  in  this  form  re-delivered  to  themselves. 
This  right  to  a  re-delivery  was  not  a  resulting  trust  merely ;  but  was  se- 
cured by  express  provision  in  the  assignment :  so  that  the  trustees  were 
bound  in  strict  compliance  with  their  duty,  and  might  have  been  com- 
pelled to  convert  the  property  to  money,  and  pay  it  over  to  the  debtors  ; 
and  nothing  but  arresting  them,  and  declaring  the  assignment  void,  could 
have  prevented  this. 

This  contrivance,  this  reservation  of  control  over  the  property,  this 
putting  it  out  of  reach  of  the  creditor's  process,  was  held  in  t'rrorevi 
over  the  creditor's  heads,  unless  they  would  release ;  and  this  constituted 
the  fraud  which  vitiated  the  assignments.  The  effort  was  to  put  the 
property  out  of  the  reach  of  the  law,  and  in  the  hands  of  trustees  so  con- 
stituted as  to  be  mere  instruments  in  the  hands  of  the  debtor,  and  utterly 
withhold  it  from  the  payment  of  debts,  unless  on  the  debtor's  own  terms. 
It  was  not  a  fair  surrender  of  the  property,  either  with  or  without  condi- 
tions.    A  control  over  it  was  still  reserved.     It  was  not  surrendered. 


*453]  COLUMBIA,  DECEMBER,    1836.  347 

The  laiicfuage  was,  "  I  will  not  surrender  nnless  you  come  to  my  terms  ; 
if  you  refuse,  the  property  is  soUl,  and  being  out  of  your  reach,  I  will 
hold  fast  the  avails,  and  defy  the  law." 

In  Austin  v.  Bell,  20  John.  Rep.  442,  448,  the  deed  of  assignment  re- 
quired the  trustee  to  pay  back  to  the  debtor  the  proportions  of  such 
creditors  as  should  refuse  to  release.  Chief  Justice  Spencer  insists  on 
the  distinction  between  this  provision  and  that  contained  in  the  deed,  in 
Murray  v.  Riggs,  2  John.  Rep.  577,  in  which  it  was  stipulated  that  the 
shares  of  the  dissenting  creditors  should  be  thrown  into  the  general  mass, 
for  the  benefit  of  the  accepting  creditors.  15  John.  Rep.  571.  He 
shows,  by  an  examination  of  cases  wherein  assignments  had  been  set 
aside,  that  the  vice  lay  not  merely  in  requiring  a  release,  but  in  putting 
the  assets  in  such  shape  as  to  be  inaccessible  to  ordinary  process;  20 
John.  Rep.  450,  and  then  establishing,  by  the  express  terms  of  the  trust, 
such  control  over  them,  in  the  grantor,  that  he  could  make  or  withhold 
payment,  at  *his  pleasure,  accordingly  as  his  creditors  should  sub-  r^i-i 
mit  to  or  reject  the  terms  dictated  by  him.  L 

Our  own  insolVent  debtor's  Act  of  1759,  confirms  me  in  the  opinion 
that,  whatever  the  law  may  be  elsewhere,  in  this  State,  at  least,  a  debtor 
may  lawfully  assign  his  whole  estate  for  the  benefit  of  such  creditors  as 
will  release  him. 

That  Act,  P.  L.  247-8-9,  after  reciting  among  other  things  that  "many 
persons  "  (whom,  so  far  from  condemning,  it  pronounces  to  be  "  proper 
objects  of  comptission  ")  "  may  be  willing  to  satisfy  their  creditors  to  the 
id  most  of  their  power,''''  provides,  that  if  any  person  sued,  impleaded  or 
arrested,  "shall  be  minded  to  make  surrender  of  all  his  effects,  towards  sat- 
tisfiiction  of  the  debts  wherewith  he  stands  charged,  or  in  ivJiich  he  shall 
be  indebted  to  any  persons  ichatsoever,"  he  may  file  a  petition,  accom- 
panied with  a  schedule  of  his  effects,  in  the  Courts  of  law  ;  who  shall, 
thereupon,  cause  not  only  the  suing  creditors,  but  "all  other  the  creditors 
to  whom  he  shall  be  indebted,  to  be  summoned.''  On  a  day  fixed,  the 
debtor  is  to  take  an  oath,  prescribed  by  ihe  Act,  that  his  schedule  con- 
tains a  full  account  of  his  effects  and  credits,  both  at  the  time  of  filing 
the  petition  and  of  taking  the  oath  ;  and  that  he  has  not,  otherwise  tlian 
as  mentioned  in  the  schedule,  assigned  or  disposed  of  any  part  thereof, 
in  such  manner  as  thereby  "  to  have  or  expect  any  benefit  or  profit  to 
himself,  or  to  defraud  any  of  his  creditors."  The  Court,  if  "satisfied 
with  the  truth  of  the  oath  taken  "  by  the  debtor,  shall  (after  making  cer- 
tain reservations  of  property  dictated  by  humanity)  order  the  effects 
specified  in  the  schedule  to  be  assigned  by  the  debtor  to  persons  to  be 
named  by  the  Court ;  which  "  assignment  shall  be  in  trust  for  the  suit- 
ors and  such  other  creditors  of  the  petitioner,  as  shall  be  willing  to  re- 
ceive  a  dividend  of  his  effects,  and  shall  within  twelve  months  from  the 
time  the  petition  was  filed,  make  their  demands." 

Now,  for  the  effect  of  this.  The  Act  gives  it  the  operation  of  a  7t- 
lease  from  all  the  accepting  creditors.  It  provides  that  the  debtor  shall, 
upon  executing  the  assignment,  and  delivering  his  effects,  so  far  as  he  has 
power  over  them  "  be  forthwith  rf?'.s(7(«r;yeJ  from  such  suits,  and  shall 
also,  thenceforth,  be  acquitted  and  dischai'gcd  from  all  such  other  of  his 
creditors,  as  shall  have  received  their  dividends  as  aforesaid." 

It  does  appear  to  me,  that  Ralph  Johnson  has  acted  in  the  very  spirit 


348  SOUTH    CAROLINA   EQUITY   REPORTS.  [*454 

of  this  statute.     He  has  made  the  very  assignment  which  it  requires  him 
:^,rr-,   *to  malie  ;  and  which,  if  executed  under  compulsory  process,  the 
•iooj  j^^^  declares,  would  have  released  him  from   all  accepting,   and 
been  valid  against  all  dissenting  creditors. 

Snrely  it  cannot  be  a  fraudulent  evasion  of  the  law  to  do  voluntarily 
what  that  same  law  would  sanction  if  done  under  process. 

It  seems  no  answer  to  this,  to  insist  that  an  insolvent,  proceeding  under 
the  Act  assigns  under  strict  scrutiny  and  under  penalty  of  perjury.  The 
scrutiny  is  to  ascertain  whether  the  debtor's  whole  estate  is  included  in 
the  assignment,  and  the  perjury  is  in  swearing  falsely  that  it  is.  But  the 
bill  admits  that  Johnson  has  assigned  his  whole  estate  ;  thereby  conced- 
ing the  truth  of  what  the  Act  would  have  required  him  to  swear ;  and 
rendering  unnecessary  any  scrutiny  whatever.  If  the  bill  had  not  done 
this,  then  the  plaintiff  would  not  have  stated  a  case  rendering  the  aid  of 
this  Court  necessary  to  him  ;  inasmuch  as,  for  aught  that  could  be -known, 
Johnson  might  still  have  had  in  hand  enough  property  to  satisfy  his  debt. 
An  argument  was  urged,  that  if  no  creditor,  or  but  one  creditor,  hold- 
ing an  inconsiderable  demand,  had  accepted  under  Johnson's  deed,  a  trust 
would  have  resulted  to  Johnson  for  the  residue  of  the  assigned  property ; 
that  this  would  have  given  him  a  control  over  the  fund,  enabling  him  to 
coerce  the  creditors  into  the  execution  of  releases  ;  and  that  the  deed 
was,  therefore,  void  for  fraud  at  its  execution  ;  and  was  not  cured  by  the 
subsequent  acceptance  of  creditors  to  an  amount  sufficient  to  exhaust  the 
fund. 

If  the  case  put  by  the  objection  had  actually  occurred  ;  if  after  a  full 
surrender  by  Johnson  of  all  his  effects,  a  trust  had  resulted  to  him,  and 
had  resulted  merely  in  consequence  of  the  non-acceptance  of  creditors,  I 
apprehend  this  would  not  have  vitiated  his  assignment.  (Prec.  Ch.  605  ; 
5  T.  R.  420  ;  2  John.  C.  R.  579,  580.)  The  authorities  draw  a  distinc- 
tion between  a  resulting  and  an  express  trust  to  the  assignor ;  between 
cases  where  the  debtor  has  reserved  a  control,  and  given  himself  a  prefer- 
ence over  the  creditors,  and  thos*  in  which  he  has  surrendered  all,  in  terms 
which  give  them  a  preference  over  him.  If  a  trust  result  in  the  latter 
case,  the  remedy  of  unpaid  creditors  is  to  be  let  in  to  an  account  of  the 
surplus  in  the  trustee's  hands 

The  existence  of  this   distinction   renders   it   unnecessary  to  inquire 
*4.5rl  ^'^6^h6r  the  acceptance  or  non-acceptance  of  the  other  creditors* 
-'  was  not  matter  for  their  exclusive  consideration,  and  not  for  the 
consideration  of  the  plaintiff.     (2  Bin.  174,  182.) 

It  also  renders  it  unnecessary  to  inquire  whether  the  supposed  defect 
has  not  been  cured.  If  it  were  not  unnecessary  to  go  into  this  inquiry, 
the  inclination  of  my  mind  is  against  the  plaintiff  The  other  creditors 
have,  by  closing  with  the  offers  made  them,  made  a  case  in  which  no  over- 
plus can  result  to  the  debtor's  hands  ;  so  that  he  has  not  any  fund,  by  a 
control  of  which  he  can  dictate  terms  to  the  plaintiff.  It  would  seem 
unreasonable  to  say,  that  under  these  circumstances  the  plaintiff  should 
be  allowed  to  resort,  not  to  the  actual  case,  but  to  one  now  altogether 
supposititious  and  put  beyond  the  range  of  possibility,  and  found  a  complaint 
thereon  ;  especially  since  the  entertaining  that  complaint  can  have  no 
other  effect  than  to  divest  the  other  creditors  of  rights  which  it  has  been 
shown,  I  think,  they  hold  without  fraud  on  him. 


^456] 


COLUMBIA,    DECEMBER,    1S3G.  349 


The  only  thing-  remaining  for  consideration,  is  whether  tlie  sale  miidc  l)y 
the  assignors  is  valid.  It  appears  that  they  called  upon  the  creditors  to 
appoint  an  agent,  under  the  Act  of  1828  ;  and  that  the  creditors  failed  to 
do  so.  (Acts  1828,  p.  32.)  The  sale  is  therefore  valid.  Indeed,  I  did 
not  understand  the  plaintiff's  counsel  to  contest  the  sale,  but  only  the 
validity  of  the  assignment;  professing  a  willingness,  if  the  assignment 
should  be  avoided,  to  take  an  account  of  the  avails  of  the  assigned 
property  in  the  trustees'  hands. 

Upon  the  whole,  I  feel  bound,  much  against  my  first  impressions,  to 
sustain  the  assignment.  But  as  I  conceive  the  plaintift"  had  strong  grounds 
to  question  its  legality,  each  party  will  pay  his  own  costs. 

If  the  plaintiff  chooses  to  have  an  account  of  any  surplus  which  may 
be  left  after  paying  the  accepting  creditors,  the  bill  will  be  retained  until 
the  next  term,  to  give  him  an  opportunity.  It  is  decreed  that  it  be  dis- 
missed, in  all  other  respects ;  and  that  each  party  pay  bis  own  costs  : 
those  of  the  trustees,  to  be  allowed  them  out  of  the  assigned  fund. 

On  an  appeal  by  the  plaintiif  from  this  decree,  the  question  as  to  the 
validity  of  the  assignment,  was  argued  at  length  by  Wethers  for  the  ap- 
pellant. The  Court  concurring  with  the  Chancellor,  the  decree  was 
affirmed. 

*  Chancellors  De  Saussure,  Johnson  and  Harper,  and  Justices  i-sh^cit 
O'JSTeall,  Evans,  Earle  and  Butler,  concurred.  ^ 

Gantt,  J.  I  entertain  serious  doubts  as  to  the  correctness  of  the 
principle  established  by  this  decree.  Indeed  I  feel  satisfied  that  it  is  in 
violation  of  the  constitution. 

IIichardson,  J.,  absent. 


Hugh  M'Mullin,  Administrator  of  William  M.  M'Donald,  v.  John 
Brown,  and  Others. 

After  the  assent  of  the  executor  the  title  vests  ia  the  legatee,  and  the  property  is  not 
lialile  in  his  liands  to  executions  subsequently  obtained  against  the  executor. («) 

A  decree  against  executors  of  an  executor,  is  pruna  facie  evidence  against  the  legatee 
of  the  first  testator  on  a  bill  to  charge  the  legacy. (6) 

The  statute  of  limitations  will  not  run  so  as  to  protect  a  legatee  against  his  liability 
for  testator's  debts,  until  after  the  remedy  has  been  exhausted  against  the  execu- 
tor.— No  cause  of  action  accrued  against  him  until  then.  [*461] 

A  creditor  of  the  testator  has  the  uncjuestionable  right  to  pursue  a  legacy  in  the 
hands  of  a  legatee,  after  assets  in  executor's  hands  have  in  any  way  been  exhaus- 
ted. '  It  might  be  different  if  he  had  stood  by  and  saw  the  executor  dissipating  the 
assets  without  making  any  effort  to  save  himself.  [*4G2] 

Lands  devised  under  a  general  residuary  clause  liable  for  debts  before  a  specific 
legacy.  [*-4G2] 

Plaintiff  decreed  to  account  for  hire  of  negroes  while  in  his  possession.  [*4G5] 

The  liability  of  a  legatee  for  testator's  debts  extends  only  to  the  legacy  iii  specie,  he 
is  not  liable  for  hire.  [*4f36] 

If  a  creditor  is  guilty  of  neglect  in  prosecuting  his  demand  against  the  executor,  the 
legatee  will  be  protected  by  the  statute  of  limitations.  Ob.  Dec.  [*467] 

(a)  See  Alexander  vs.  Williams,  1  Hill,  622. 

(6)  See  Vernon  &  Co.  vs.  Valk  &  AVifc,  ante,  257. 


350  SOUTH    CAROLIXA    EQUITY    REPORTS.  [*-l:57 

Chester,  1835. — The  following  decree  contains  a  full  statement  of  tbe 
case  : 

JoHNsox,  J.,  (sitting  as  Chancellor.)  The  oliject  of  this  bill  is  to 
charge  certain  slaves,  Dinah,  Fann,  Sara,  Tulf,  Jim,  Ransom,  Aggj  and 
Peggy,  now  in  possession  of  defendant,  IJrown,  with  the  payment  of  about 
$4000,  remaining  due  on  a  decree  obtained  in  the  Court  of  Chancery  l>y 
the  plaintiff,  against  John  Dunovant  and  John  Kidd,  executors  of  ^lid- 
dleton  ]\l'Ponald,  jr.,  who  was  executor  of  Middloton  M'Donald,  sen  ,  to 
the  plaintiff's  intestate,  the  said  Middleton  ^I'Donald,  jr.,  having  died 
insolvent. 

In  support  of  this  claim,  it  is  stated  in  the  plaintiff's  bill  that  the 
whole  of  the  unadministered  assets  of  the  said  Middleton  M'Donald,  sen., 
in  the  hands  of  Dunovant  and  Kidd,  had  been  sold  by  the  sheriff  under  a 
fi.  fa.,  founded  on  the  above  mentioned  decree,  leaving  the  balance  above 
mentioned  unsatisfied,  and  with  respect  to  which  the  ^. /a.  is  returned 
nulla  bona ;  but  that  Middleton  M'Donald  died  seized  and  possessed  of 
a  considerable  real  and  personal  estate,  more  than  sufficient  to  pay  all  his 
just  debts,  and  that  his  executor,  Middleton  M'Donald,  jr.,  instead  of 
retaining  the  same  in  his  hands  for  that  purpose,  paid  and  delivered  over 
to  the  legatees  of  his  said  testator's  v/ill,  all  such  legacies  as  were  therein 
bequeathed  to  them,  and  suffered  them  to  take  into  their  possession  such  of 
the  real  estate  as  was  therein  also  devised  to  them,  and  otherwise  disposed 
of  the  real  and  personal  estate  of  his  said  testator,  without  paying  the 
debt  due  to  the  plaintiff's  intestate;  and  that  amongst  other  things,  he 
delivered  to  the  defendant.  Brown,  the  negroes  above  mentioned,  in  pur- 
suance of  a  bequest  contained  in  the  said  last  will  and  testament  of  the 
5,,  .rjj-]  said  *Middleton  M'Donald,  sen.,  to  Tirza,  the  wife  of  the  said 
-■  John  Brown,  and  constitutes  the  only  property  whereof  the  said 
Middleton  M'Donald,  sen.,  died  possessed,  which  remains  within  the  juris- 
diction of  the  Court,  and  can  be  rendered  available  to  satisfy  the  plaintiff's 
demand.  The  prayer  of  the  biy,  so  far  as  it  affects  the  defendant,  Brown, 
who  is  the  only  defendant  interested  in  the  present  state  of  the  case,  is 
that  the  negroes  in  his  possession  be  decreed  to  be  delivered  up  and  sold 
to  satisl}^  the  plaintiff's  demand  ;  and  if  that  should  be  insufficient,  that 
he  should  account  for  hire  during  the  time  he  has  had  them  in  possession, 
which  is  stated  in  the  bill  to  have  been  since  1816  or  1817. 

The  answer  of  the  defendant,  Browm,  admits  that  the  negroes  above 
mentioned  were  specifically  bequeathed  to  his  said  wife,  Tirza,  in  the  said 
last  will  and  testament  of  the  said  Middleton  M'Donald,  sen.,  and  that 
the  said  Middleton  M'Donald,  jr.,  the  executor,  assented  to  the  said 
legacy,  and  delivered  the  said  negroes  to  him  about  the  latter  end  of  the 
year,  1817,  and  that  he  has  had  possession  of  them  ever  since,  and  that 
these  facts  were  well  known  to  the  plaintiff.  He  also  states,  that  the  said 
Middleton  M'Donald,  sen.,  died  seized  and  possessed  of  considerable  real 
and  personal  estate,  more  than  sufficient  to  pay  all  his  just  debts,  exclu- 
sive of  the  negroes  specifically  bequeathed  to  his  wife,  which  were  not 
subject  to  pay  the  plaintiff's  debt,  until  the  whole  of  his  estate  not  specifi- 
cally devised,  had  been  exhausted;  and  amongst  other  things,  divers 
valuable  tracts  of  land,  still  remaining  unsold  and  subject  to  the'plaintiff's 
demand,  in  exoneration  of  the  specific  legacies,  and  to  which  plaintiff 


*45S]  COLUMBIA,    DECEMBER,    1836.  351 

ouo-bt  first  to  resort.  He  denies  that  the  plaintiff's  demand  is  jnst ;  and 
as  he  has  not  heretofore  been  a  party  to  the  proceedinjrs,  nor  had  notice 
to  come  in  and  defend  his  rights,  he  insists  that  ph^intitf  is  bonnd  to  make 
strict  proof  of  his  demand. 

The  answer  fnrtlier  insists  that  tlie  defendant  is  protected  against  this 
demand  by  the  statute  of  limitations,  and  relies  on  his  possession  of  the 
negroes  since  1817,  with  the  knowledge  of  plaintiff.  In  connection  with 
this  question,  it  will  be  necessary  to  state  more  particularly  the  nature  of 
]^laintift''s  demand,  and  the  circumstances  attending  its  prosecution. 
William  M'Donald,  who  died  in  1801,  by  his  will  bequeathed  to  his  son, 
"William  M.  ^I'Donald,  a  legacy  consisting  princijially  of  negroes,  and 
appointed  Middleton  M'Donald,  sen.,  his  executor.  "\Villiara  M.  M'Donald 
died  *in  1813,  under  age  and  intestate,  and  administration  of  his  r^jji-Q 
estate  was  granted  to  plaintiff.  In  181-4,  plaintiff  filed  an  original  ^ 
bill  against  Middleton  M'Donald,  jr.,  executor  of  ^liddleton  M'Donald, 
sen.,  for  an  account  of  the  legacy  as  bequeathed  to  William  M.  M'Donald, 
by  bis  father,  William  M'Donald,  which  was  continued  from  time  to  time, 
and  divers  references  held  until  1816,  when  it  abated  by  the  death  of  the 
defendant,  and  was  revived  against  Dunovant  and  Kidd,  his  executors,  by 
bill  filed  in  1819.  This  last  bill  was  continued  from  time  to  time  until 
18'28,  when  a  final  decree  was  pronounced,  and  being  unable,  as  before 
stated,  to  obtain  satisfaction  of  that  decree,  the  plaintiff  filed  this  bill 
in  1829. 

Supposing  the  plaintiff's  claim  to  be  established  liy  competent  evidence, 
and  that  there  is  no  other  i)roperty  out  of  which  it  can  be  satisfied  but 
the  legacy  to  Brown's  wife,  it  will  not  be  denied  that  the  plaintiff  has  a 
right  to  pursue  it,  unless  he  has  lost  it  by  negligence  or  lapse  of  time. 
Conceding  this,  the  questions  raised  in  the  defence  are  : 

1.  Whether  the  plaintiff*,  supposing  he  has  a  right  to  pursue  the  pro- 
perty in  defendant's  possession,  had  not  an  adequate  remedy  by  levying 
the  execution  on,  and  selling  the  negroes  in  the  defendant's  possession, 
under  the  execution  against  Dunovant  and  Kidd,  the  executors  of  Mid- 
dleton M'Donald,  jr. 

2  Whether  the  decree  against  Dunovant  and  Kidd.  was  competent 
evidence  against  the  defendant,  of  the  demand  against  Middleton  M'Don- 
ald, sen. 

3.  Whether  the  plaintiff's  rights  against  the  defendant  are  not  barred 
by  the  statute  of  limitations. 

4.  The  fact  being  stated  in  the  bill,  that  there  were  sufficient  assets  to 
pay  all  the  debts,  whether  the  defendant  is  bound  to  refund  on  account  of 
the  devastations  of  the  executor. 

5  Whether  in  point  of  fact,  there  are  other  assets  in  the  jurisdiction 
of  the  Court,  chargeable  with  the  payment  of  this  demand,  in  exoneration 
of  the  specific  legacy  to  the  plaintiff's  wife. 

The  position  taken  in  the  defence  is  very  clearly  untenable.  In  theory 
of  law,  all  the  chattels  of  the  testator  vest  in  the  executor,  and  his  dispo- 
sition of  them  is  at  law,  binding  on  both  creditors  and  legatees,  whether 
general  or  specific,  so  that  the  delivery  of  the  legacy  to  defendant's  wife, 
and  assenting  thereto,  vested  the  legal  property  in  the  defendant,  of  which 
he  co\dd   not  *be  divested  but  by  due  course  of  law.     There  was 


not,  therefore,  any  property  in  Dunovant  and  Kidd,  on  which  tlie 


[*4G0 


352  SOUTH    CAROLINA    EQUITY    REPORTS.  [*460 

execution  against  it  could  attach.  The  right  to  pursue  it  in  the  hands 
of  the  defendant  is  a  mere  e(iuity,  which  the  Court  of  Chancery  alone  has 
the  power  of  enforcing. 

3.  I  am  of  opinion  also,  that  the  decree  against  Dunovant  and  Kidd 
was  at  least  i^rima  facie  evidence  against  the  defendant,  of  the  correct- 
ness and  amount  of  the  demand  against  Middleton  M'Donald,  sen. 
Judgments  and  decrees  of  Courts  of  competent  jurisdiction  directly  on 
the  point  in  controversy,  are  admissible  in  evidence,  not  only  between  the 
parties,  but  all  persons  standing  in  the  relation  of  privies  in  blood,  in 
estate  or  in  law.  And  I  understand  by  the  term  privy,  when  applied  to 
a  judgment  or  decree,  one  whose  interest  has  been  legally  represented  at 
the  trial.  The  heir,  for  example  is  privy  in  blood  to  the  ancestor,  and 
consequently  a  judgment  against  the  ancestor  is  evidence  against  the  heir. 

So,  if  several  remainders  be  limited  by  the  same  deed,  the  remainders 
are  privies  in  estate  to  each  other,  and  a  verdict  for  one  will  be  evidence 
for  the  rest  in  remainder  ;  and  privies  iu  law  are  such  as  derive  their  in- 
terest through  the  parties.     Starkie's  Ev.  pt.  2,  p.  192-3-4. 

In  the  case  against  Dunovant  and  Kidd,  the  point  in  issue  was,  whether 
Middleton  M'Donald,  sen.,  was  indebted  to  the  plaintiff's  intestate,  and 
how  much  ;  and  that  is  precisely  one  of  the  questions  here — the  right  of 
the  plaintiifs  to  recover  here,  depends  on  that  indebtedness.  The  ques- 
tions are  therefore  the  same.  In  the  former  suit,  Dunovant  and  Kidd,  as 
the  executors  of  Middleton  M'Donald,  jr.,  who  was  the  executor  of  Mid- 
dleton M'Donald,  sen.,  were  clothed  with  all  the  rights,  and  represented 
the  interest  which  had  appertained  to  Middleton  M'Donald,  sen.,  and  it  is 
from  him  that  the  defendant  derives  his  right  to  the  property  constituting 
the  legacy  bequeathed  to  his  wife,  and  which  is  sought  to  be  charged 
with  tiie  payment  of  this  debt  His  rights  are  subordinate  to  the  rights 
of  the  plaintiff  as  a  creditor,  and  were  therefore  properly  and  legally  rep- 
resented on  the  former  trial ;  he  is  therefore  a  privy  to  that  decree,  and 
is  bound  by  it.  I  am  not  prepared  to  say,  however,  that  the  decree  is 
conclusive.  Chancery  would  relieve  unquestionably  against  the  fraud 
and  combination  of  the  creditor  and  the  executor,  and  possibly  against 
the  negligence  of  the  executor,  when  the  rights  of  the  legatee  had  been 
*4611  *ct)inpromised  by  it;  but  these  questions  do  not  arise  out  of  the 
-*  case. 

3.  The  statute  of  limitations  does  not  in  terms  apply  to  demands  that 
are  merely  equitable,  but  the  rule  which  it  prescribes  is  adopted  in  chan- 
cery, in  cases  that  are  analogous  to  those  in  whicii  it  applies  at  law. 
Stackhouse  v.  Barnston,  10  Ves.  46r>_7 ;  and  in  analogy  to  the  rule  at 
law,  I  take  it  for  granted  that  it  will  not  run  until  a  known  cause  of 
action  or  suit  has  arisen.  The  principle  of  the  statute  will  not  apply  to 
those  technical  and  continuing  trusts  which  are  alone  cognizable  in  the 
Court  of  Chancery,  (Kane  v.  Bloodgood,  7  John.  Ch.  90,  Van  Rhyn  v. 
Vincent,  1  M'C.  Ch.  310,)  until  the  trust  is  put  an  end  to  by  the  refusal 
of  the  trustee  to  account,  or  by  some  other  act  by  which  he  throws  off 
the  character  of  trustee.  (See  Stark  v.  Stark,  and  Montgomery  v. 
Montgomery,  decided  in  this  Court.)  But  this  is  not  one  of  those 
technical  continuing  trusts,  but  one  of  those  constructive  trusts,  implied 
from  the  circumstance  of  the  defendant  having  obtained  possession  of  a 
fund  out  of  which  the  plaintiff  was  entitled  to  have  his  demand  satisfied, 


*461]  COLUMBIA,    DECEMBER,    1836.  353 

and  with  respect  to  wliicli  tlie  authorities  all  agree  that  tlie  statute  will 
bar  a  recovery.  I  have  before  remarked,  however,  that  tlie  suitiite  could 
not  operate  before  a  cause  or  suit  of  action  had  arisen,  and  was  known 
to  the  plaintiff,  and  the  question  now  is,  when  did  the  plaintiff's  cause  of 
suit  against  the  defendant  arise,  and  when  was  it  known  to  the  ])l:dntiff. 

Middleton  M'Donald,  jr.,  the  executor,  and  after  his  death,  Dunovant 
and  Kidd,  his  executors,  were  i)revionsly  liable,  and  the  defciulant  only 
in  the  event  of  plaintilT's  being  unable  to  recover  payment  from  them.  Both 
bill  and  answer  state,  that  over  and  above  the  specific  legacy  to  defend- 
ant's wife,  there  were  abundant  assets  to  pay  all  the  debts  of  the  testator  ; 
and  one  ground  of  the  present  defence  is,  that  even  now  there  are 
sufficient  assets  to  pay  this  decree,  and  until  the  plaintiff  had  ex- 
hausted his  remedy  against  them,  he  could  not  certainly  know  that  the 
assets  would  prove  insufficient :  and  there  is  no  evidence  to  show  that 
there  was  any  reasonable  ground  to  suppose  that  they  would  be  in- 
sufficient. It  is  said  that  defendant  might  have  been  joined  in  the  bill 
against  Middleton  M'Donald,  jr.,  and  against  Dunovant  and  Kidd,  and 
the  case  of  Trescot  v.  Trescot,  1  M'C.  Ch.  432,  sanctions  that  mode  of 
proceeding  ;  but  even  that  case  concedes,  that  according  to  the  general 
rule,  the  proceedings  ought  to  be  against  the  executor  *only  in  the  r:!c i/.^ 
first  instance,  and  that  a  departure  from  it  is  only  justifiable  when  •- 
it  is  known  that  the  assets  remaining  in  tlie  hands  of  the  executor  are 
insufficient.  If,  therefore,  the  plaintiff' had  joined  Brown  in  either  of  the 
former  bills,  and  it  had  turned  out  that  the  other  assets  were  sufficient, 
as  to  him,  the  bill  would  have  been  dismissed  with  costs.  I  think,  there- 
fore, that  he  was  not  bound  to  join  the  defendant,  and  having  no  certain 
knowledge  that  the  assets  would  prove  insufficient,  it  cannot  be  said  that 
a  known  cause  of  action  or  suit  had  arisen,  until  the  remedy  against 
Dunovant  and  Kidd  was  exhausted,  and  that  the  defendant  is  not  pro- 
tected by  the  statute. 

There  is  a  common  sense  view  of  this  question,  which  is,  in  my  judg- 
ment, equally  conclusive.  The  claim  of  the  plaintiff,  being  founded  on  a 
valuable  consideration  is  more  meritorious  than  that  of  defendant,  which 
is  merely  voluntary.  The  plaintiff  has,  for  more  than  twenty  years,  pur- 
sued his  claims  with  unremitting  diligence,  precisely  in  the  course  pre- 
scribed by  the  rules  of  law,  and  the  practice  of  the  Courts.  He  could 
not  know  the  necessity,  nor  had  he  the  power  of  restraining  the  executor 
in  giving  an  illegal  preference  to  the  defendant,  in  assenting  to  and 
delivering  his  legacy;  and  it  is  unjust  and  unreasonable  that  the  defend- 
ant should  be  entitled  to  avail  himself  of  the  advantage  thus  gained. 

4.  The  cases  of  executors,  Gregory  v.  Forrester,  1  M'C.  Ch.  326,  and 
Trescot  v.  Trescot,  lb.  431,  are  decisive  on  the  question  that  the  plain- 
tiff has  the  right  to  pursue  the  legacy  to  defendant's  wife,  for  the  satisfac- 
tion of  the  demand.  If,  after  the  legacy  had  been  delivered  to  the 
defendant,' the  plaintiff  had  stood  by  and  saw  the  executor  dissipate  the 
assets  of  his  testator,  without  making  an  effort  to  secure  himself,  equity 
would  not  have  relieved  ;  but  so  far  from  this,  a  suit  was  pending  against 
the  executor  at  the  time,  and  although  it  afterwards  abated  by  his  death, 
it  was  revived  with  all  possible  despatch. 

5.  In  the  residuary  clause  of  the  last  will  and  testament  of  Middleton 
M'Donald,  sen.,  he   devised  to  his  son,  Middleton    M'Donald,  jr.,   his 


354  SOUTH    CAROLINA    EQUITY    REPORTS.  [*462 

exector,  alL  his  lands  not  before  disposed  of  for  life,  remainder  to  his 
eldest  son ;  and  some  evidence  was  given  on  the  trial  that  two  tracts  of 
land  passed  under  this  devise,  amouuting  in  value  to  a  sura  much  greater 
than  the  plaintiff's  demand;  and  unless  these  lands  were  disposed  of  in 
the  due  couse  of  administration,  being  general  and  not  specific  legacies, 
^  ,  -,  they  were  unquestionably*  liable  before  the  plaintiff  could  resort 
-^  to  the  specific  legacy  to  defendant's  wife.  The  plaintiff's  counsel 
stated  to  the  Court  that  he  was  able  to  prove  that  those  lands  had  been 
disposed  of  in  due  course  of  administration,  but  was  not  then  prepared  to 
do  so.  The  cause  was  heard  at  the  last  hour  of  the  term,  and  when,  in 
truth,  there  was  no  time  for  the  examination  of  the  matter,  and  the  cause 
was  left  open  by  consent  for  further  evidence  on  the  point.  Since  that 
time  an  execution  has  been  put  into  my  hands  at  the  suit  of  Canty  & 
M'Rae  v.  Middleton  M'Donald,  jr.,  executor  of  Middleton  M'Donald, 
sen.,  from  which  it  appears  that  a  tract  of  land,  containing  1,129  acres 
had  been  sold  to  satisfy  that  and  other  executions,  but  I  have  no  means 
of  ascertaining  whether  it  is  any  part  of  the  land  devised  by  the  residuary 
bequest ;  and  from  the  hurry  in  which  the  case  was  tried,  the  circum- 
stances have  not  been  sufficiently  developed  to  enable  me  to  form  a  judg- 
ment satisfactory  to  my  own  mind  on  this  branch  of  the  case,  and  have 
therefore  concluded  to  refer  it  to  the  Commissioner  to  collect  farther  evi- 
dence on  the  matter. 

In  1813,  or  thereabouts,  the  plaintiff,  under  some  pretence  of  right  in 
himself,  took  possession  of  the  negroes  now  in  controversy,  and  retained 
them  until  1817,  when  they  were  recovered  from  him  in  an  action  at  law, 
by  Middleton  M'Donald,  jr.,  as  the  executor  of  Middleton  M'Donald, 
sen.,  and  the  defendant  insists,  that  if  anything  should  be  decreed  against 
him,  the  plaintiff  is  bound  to  account  for  or  credit  his  demand  with  their 
hire  during  the  time  he  had  them  in  his  possession — but  this  cannot  pre- 
vail. In  the  action  at  law,  which  I  understand  was  detinue,  the  plaintiff 
was  entitled  to  recover  hire  by  way  of  damages  for  the  detention,  and  I 
presume  did  so.  At  any  rate,  the  judgment  is  conclusive,  and  he  is  not 
bound  to  account  again  for  their  hire. 

In  the  event  of  the  liability  of  defendant,  and  the  sales  of  the  negroes 
proving  insufficient  to  pay  the  balance  due  on  the  decree,  it  is  insisted 
for  the  plaintiff  that  defendant  is  bound  to  account  for  the  hire  of  the 
negroes  during  the  whole  time  he  has  had  them  in  his  possession  ;  but 
this  cannot  be  allowed.  The  defendant's  possession  was  legal  and  right- 
ful, and  in  retaining  possession  of  them,  he  withheld  no  right  from  the 
plaintiff  and  did  him  no  wrong,  until  the  fact  of  the  indebtedness  of  Middle- 
ton  M'Donald,  sen.,  which  was  controverted,  was  judicially  ascertained, 
and  until  he  had  notice  that  a  resort  to  this  fund  would  be  necessary  to 
^ifiii  satisfy  *the  demand.  The  rule  is,  that  when  one  lies  by  and 
-^  suffers  another  to  enjoy  property  or  funds  as  his  own,  under  an 
apparent  bo72a  fide  title,  which  might  have  been  brought  into  discussion, 
he  will  be  restricted  in  his  demand  for  an  account  to  the  time  of  the 
demand  made,  or  to  four  years  before  filing  the  bill.  Rowland  i'.  Best, 
2  M'C.  320.  And  the  circumstances  of  this  case  appear  to  me  to  justify 
the  application  of  the  rule  to  its  fullest  extent.  The  plaintiff  will  there- 
fore only  be  entitled  to  an  account  of  hire  from  the  filing  of  the  bill. 

It  is  therefore  ordered  and  decreed,  that  it  be  referred  to  the  Commis- 


*46i]  COLUMBIA,    DECEMBER,    183G.  355 

sioiier  to  ascertain  and  report  whether  the  testator,  Middleton  M 'Donald, 
died  seized  of  any  lands  and  tenements,  and  if  any,  their  value,  and  whether 
they  have  been  sold  and  dis}»osed  of,  and  in  what  manner  and  by  whom 
and  on  what  account. 

To  provide  also  for  the  event  of  the  defendant's  ultimate  liability,  it  is 
also  ordered  that  defendant  do  account  before  the  Commissioner  for  the 
hire  of  the  negroes  mentioned  in  the  bill,  from  the  time  of  the  (ilin"-  of 
the  bill.  ° 

The  defendant,  John  Brown,  gave  notice  that  he  would  move  the 
Court  of  Appeals  to  reverse  the  decree  in  the  above  case,  upon  the  fol- 
lowing grounds,  to  wit : 

1.  Because  the  decree  against  Dunovant  and  Kidd  was  not  competent 
evidence  ag'ainst  the  defendant  Brown,  of  the  demand  against  Middleton 
M'Donald,  sen. 

2.  Because  the  plaintiff's  rights  against  the  defendant,  Brown,  were 
barred  by  the  statute  of  limitations. 

3.  Because  the  defendant,  Brown,  was  not  bound  to  refund  on  account 
of  the  devastation  of  the  executor,  Middleton  M'Donald,  jr. 

The  defendant.  Brown,  also  gives  notice,  that  upon  failing  to  have 
the  decree  reversed,  he  will  move  to  reform  the  same  in  the  following 
particulars  : — 

1.  That  the  plaintiff's  demand  should  be  credited  with  the  hire  of  the 
negroes  in  his  possession  from  1813  to  1817,  as  well  as  the  value  and 
hire  of  one  other  negro,  bequeathed  to  the  wife  of  the  defendant,  Brown, 
in  plaintift"'s  possession  from  1813  up  to  the  present  time. 

2.  That  as  the  estate  of  Middleton  M'Donald,  sen.,  was  more  than 
sufficient  to  pay  all  the  debts,  and  as  the  other  devisees  and  legatees  have 
received  their  portions  thereof,  defendant,  Brown,  *should  not  be  r*  </.= 
charged  with  more  than  his  wife's  share  or  proportion  of  said  debt.   •- 

3.  That  the  defendant,  Brown,  should  not  be  charged  with  negro  hire. 

Blanding,  for  the  appellant,  argued  these  grounds  at  length,  and  cited 
Smith  V.  Groggins,  1  State  Rep.  52 ;  Chappell  f.  Brown,  1  Bailey,  530. 

Clarke,  contra.  That  the  decree  against  Dunovant  and  Kidd,  execu- 
tors of  Middleton  M'Donald,  jr.,  was  competent  evidence,  and  that  lega- 
cies in  the  hands  of  legatees  were  assets  for  the  payment  of  debts  after 
exhausting  those  in  the  hands  of  the  executor — cited  Executors  of  Elliot 
V.  Drayton,  3  Eq.  Rep.  29;  1  Yernon,  94;  Screvin  v.  Bostick,  2  M'C. 
Cii.  410;  Milligan  v.  Milligan,  3  Cranch,  28.  As  to  the  statute  of 
limitations.— He  insisted  that  there  was  no  cause  of  action  against  de- 
fendant until  the  remedy  had  been  exhausted  against  the  executors. 
That  the  executor  is  a  trustee  as  well  for  the  creditors  as  the  legatees, 
and  a  legatee  takes  subject  to  the  paramount  equity  of  creditors — the 
legatee  is  also  in  such  case  a  trustee,  and  the  statute  will  not  run — Kane 
V.  Bloodgood,  1  John.  Ch.  Rep.  99;  Drayton  v.  Drayton,  1  Eq.  Rep. 
559;  High  v.  Dunwoodie,  2  Yes.  8t ;  Irby  v.  M'Crae,  4  Eq.  Rep.  422; 
Saxon  V.  Barksdale,  4  Eq.  Rep.  522  ;  Hovenden  u.  Annesloy,  2  Sch.  & 
Lef.  638;  Decouche  v.  Savetier  3  John.  Ch.  Rep.  2lT;  Yan  Rhyn  u. 
Yincent,  1  M'C.  Ch.  310. 

As  to  the  liability  of  legacies  after  devastavit  of  executor — Lupton  v. 


356  SOUTH    CAROLINA    EQUITY    REPORTS.  [*465 

Lupton,  2  John.  Ch.  Rep.  614;  Anonymous,  1  P.  W.  495;  Gregory  v. 
Forrester,  1  M'C.  Ch.  325. 

Johnson,  Chancellor.  The  Court  instruct  me  to  say,  that  they  concur 
in  the  decree  of  the  Circuit  Court,  except  so  far  as  it  goes  to  discharge 
the  plaintiff  from  his  liability  for  the  hire  of  the  negroes  while  in  his 
possession,  from  the  time  of  the  rendition  of  the  verdict  in  the  action  of 
detinue,  at  the  suit  of  Middleton  M'Donald,  jr.  against  the  plaintiff',  until 
they  were  delivered  to  the  said  Middleton  M'Donald  ;  and  so  far  as  the 
decree  charges  the  defendant  with  the  hire  of  the  negroes  in  his  posses- 
sion from  the  time  of  filing  the  bill.  On  the  first  of  these  points,  the 
Court  is  of  opinion  that  the  plaintiff  is  bound  to  account  for  the  hire 
j^  -.  *of  the  negroes  during  the  time  they  remained  in  his  possession 
-J  after  the  verdict;  and  in  this  opinion  I  entirely  concur,  and  should 
have  so  decided,  if  the  fact  that  the  negroes  did  remain  in  his  possession, 
had  been  brought  before  me  on  the  Circuit.  T  do  not  know  now  how 
the  fact  is,  and  the  counsel  differ  about  It :  the  truth  will  be  ascertained 
on  a  reference  On  the  second  point,  the  Court  have  instructed  me  to 
say,  that  the  liability  of  the  defendant  extends  only  to  the  legacy  in  specie 
which  he  has  received,  and  that  he  is  not  liable  to  account  for  the  hire  of 
the  negroes,  even  after  the  filing  of  the  bill ;  and  in  these  respects  the 
decree  of  the  Circuit  Court  must  stand  corrected  and  reformed. 

On  the  argument  of  the  cause  here,  the  counsel  have,  for  the  purpose 
of  putting  a  final  end  to  all  litigation  between  the  parties,  conceded  that 
the  defendant  is  in  possession  of  another  negro  called  Ben,  part  of  the 
legacy  to  his  wife  Tirza,  under  the  will  of  Middleton  M'Donald,  sen.  ; 
and  that  the  plaintiff  is  now,  and  has  been  for  a  long  time  in  possession 
of  another  negro  called  Mary,  part  of  the  said  legacy  ;  and  have  consented 
that  the  rights  of  the  parties  in  these  negroes  should  be  adjusted  in 
this  cause,  although  their  names  have  been  accidentally  omitted  in  the 
pleadings. 

The  negro,  Ben,  is  certainly  subject  to  the  payment  of  the  plaintiff's 
demand,  on  the  same  principles  that  the  other  negroes  of  the  legacy  are 
held  to  be  so  ;  and  the  plaintiff  is  chargeable  with  the  value  and  hire  of 
the  negro,  Mary,  on  the  same  principle  that  he  is  held  liable  for  the  hire 
of  the  other  slaves. 

It  is  therefore  ordered  and  decreed,  that  so  much  of  the  Circuit  Court 
decree  as  directs  the  defendant  to  account  for  the  hire  of  the  negroes  in 
his  possession,  be  set  aside  and  reversed ;  and  that  the  plaintiff  do  account 
for  the  hire  of  the  negroes  mentioned  in  the  bill,  from  the  time  of  the 
rendition  of  the  verdict  in  the  action  at  law  against  him  at  the  suit  of 
Middleton  M'Donald,  jun.,  executor  of  Middleton  M'Donald,  sen.,  until 
they  were  delivered  to  the  said  Middleton  M'Donald,  jun.,  or  to  some 
one  else  authorized  to  receive  them  ;  and  that  he  do  also  account  for  the 
value  of  the  negro,  Mary,  and  for  her  hire  during  the  time  he  has  had 
her  in  possession,  the  amount  thereof  to  be  credited  to  the  balance  due 
on  his  judgment  against  Dunovant  and  Kidd,  executors  of  Middleton 
M'Donald,  jun. 

*46'7l     .  *^^^  concurring  in  the  decree  of  the  Circuit  Court  on  the  ques- 
tion arising  out  of  the  statute  of  limitations,  the  Court  desire  not 
to  be  understood  as  laying  down  the  rule  broadly,  that  a  legatee  will  in 


1 


*467]  COLUMBIA,   DECEMBER,    1836.  357 

no  case  be  protected  by  the  statute  against  the  claims  of  the  creditors  of 
the  testator;   on  the  contrary,  it  is  thought,  that  if  tlie  creditor  is  guilty 
of  neglect  in  the  prosecution  of  his  demand   against  the  executor,  the. 
legatee  would  be  protected  by  the  principle,  if  not  the  letter,  of  the 
statute. 

Chancellors  De  Saussure  and  Harper,  and  Justices  O'Neall,  Rich- 
ardson, Evans,  and  Butler,  concurred. 

Chancellor  Johnston  having  been  of  counsel  in   the  case,  gave  no 
opinion. 


John  Robinson,  and   Others,  v.  ISTathaniel   Gist,  Administrator  of 

Hiram  Coleman. 

Where  an  administrator  rendered  an  erroneous  statement  of  assets,  and  paid  the 
creditors  their  proportion  thereof,  and  took  their  assignments  for  the  balance  :  — 
Held,  that  he  should  not  be  permitted  to  retain  to  his  own  use  the  funds  afterwards 
collected.  As  a  trustee,  he  cannot  make  profit  to  himself  of  the  trust  estate. — 
Assignments  set  aside,  errors  corrected,  and  administrator  ordered  to  account. 
[*467] 

Union,  Special  Term,  September,  1835. 

O'Neall,  J.,  (sitting  as  Chancellor.)  The  plaintiffs  are  creditors  of 
the  late  Hirara  Coleman,  of  vs^hom  the  defendant  is  the  administrator. 

In  1828,  three  years  after  the  death  of  his  intestate,  the  defendant 
exhibited  to  the  plaintiffs  a  statement  of  the  Ordinary,  by  which  it  appears 
that  after  paying  preferred  debts,  the  defendant  had  in  his  hands  only 
$1895  04  of  available  assets,  for  the  payment  of  their  debts.  Of  this 
sura  he  paid  to  them  their  proportions,  and  took  their  receipts  for  the 
same,  with  an  authority  to  himself  to  receive,  to  his  own  use,  any  further 
suras  applicable  to  the  said  debts  which  he  might  be  able  afterwards  to 
collect  from  the  assets  of  his  intestate. 

It  appears,  on  looking  into  the  accounts  made  up  by  the  Ordinary, 
and  on  which  his  statement  was  predicated,  that  they  were  erroneously 
made  up,  in  allowing  defendant  commissions  on  paying  a  very  large  debt 
due  by  his  intestate  to  himself;  and  in  computing  interest  on  the  amount  of 
that  debt,  from  1825  to  1828,  and  not  applying  annually  to  its  extinguish- 
ment the  annual  balances  in  the  hands  of  the  defendant  since  1828. 

The  defendant  has  collected  and  received  of  the  doubtful  assets  r*^gg 
of  his  intestate,  $1410  47,  which  he  now  contends,  under  the  set-  L 
tleraent  and  the  receipts  of  the.  plaintiffs,  he  is  entitled  to  retain  to  his 
own  use. 

There  can  be  no  doubt  that  the  plaintiffs  accepted  of  the  sums  paid 
them  by  the  defendant,  under  the  belief  that  the  Ordinary's  statement  of 
the  account  was  correct.  When  this  is  shown  to  have  been  incorrect,  it 
follows  that  this  was  such  a  mistake  in  fact,  as  would  have  made  that 
settlement  not  binding  on  the  plaintiffs. 

But,  independent  of  this,  the  defendant  cannot  be  allowed  to  set  up 
these  receipts  as  a  purchase  or  gratuity  from   the   plaintiffs  or  their 
YoL.  1—46 


358  SOUTH  CAROLINA    EQUITY   REPORTS.  [*468 

interests  as  creditors  in  Hiram  Coleman's  estate.  The  defendant  was 
tlieir  trustee,  and  he  cannot  be  allowed  to  speculate  upon  his  cestui  que 
trusts.  It  is  a  settled  rule  that  he  shall  not  make  profit  out  of  his  trust. 
For  collecting  the  funds,  which  was  a  duty  imposed  on  him  by  law,  he 
would  claim  that  they  should  become  his  own.  It  is  true  that  the  plain- 
tiffs assented  to  this  in  1828  ;  but  it  is  equally  true  that  they  now  object  to 
it,  and  the  defendant  has  not  even  the  pretext  of  a  consideration  on  which 
he  can  claim  to  hold,  for  his  own  use,  their  dividends  of  the  funds  in  his 
hands.  It  cannot  therefore  be  allowed  that  he  should  be  regarded  as 
the  assignee  of  the  plaintiffs. 

But,  if  there  had  been  an  assignment  on  some  slight  consideration,  I 
should  hold  the  relation  of  confidence  between  the  defendant  and  plain- 
tiffs, would  render  it  invalid. 

It  is  ordered  and  decreed  that  the  defendant  do  deposit  with  the  Com- 
missioner, the  evidence  of  his  intestate's  indebtedness  to  the  plauitiffs — 
that  the  Commissioner  do  report  the  balances  due  to  the  plaintiffs,  after 
deducting  the  payments  made  by  the  defendant  in  1828 — that  he  do  also 
advertise  in  the  papers  published  in  Charleston  and  Columbia,  for  three 
months,  for  the  other  creditors  of  Hiram  Coleman  to  present  sworn  state- 
ments of  their  debts  to  him  on  or  before  the  15th  of  February  next ;  and 
that  he  do  examine  and  report  the  amounts  due  to  them,  together  with 
the  amounts  due  to  the  plaintiffs,  to  the  next  Court  of  Equity  for  Union 
District. 

It  is  also  ordered  that  the  Commissioner  do  charge  the  defendant,  in 
his  account  on  Hiram  Coleman's  estate,  with  the  amount  retained  by  him 
as  commissions  for  paying  his  intestate's  debt  to  himself,  and  the  interest 
thereon. 

*4.rql  "^^^  ^^  ^^^^  ordered  that  he  do  correct  the  defendant's  accounts 
-•  made  up  by  and  before  the  Ordinary,  Rice,  by  applying  the  annual 
balances  in  the  hands  of  the  defendant,  from  1825  to  1828,  to  the  pay- 
ment of  his  intestate's  debt  to  himself,  and  that  the  amount  of  the  differ- 
ence between  his  debt  thus  ascertained  and  paid,  and  as  it  was  allowed 
by  the  former  Ordinary,  Rice,  be  charged  with  interest,  to  the  defendant. 

It  is  also  ordered  that  the  defendant  do  account  for  the  assets  of  his 
intestate,  collected  since  1828,  with  interest  thereon. 

The  defendant  contends,  that  in  making  these  last  collections,  he  has 
l)een  put  te  extraordinary  trouble,  and  has  claimed  compensation  beyond 
the  regular  commissions. 

It  is  therefore  ordered  that  an  issue  be  forthwith  made  up  and  tried  at 
the  ensuing  term  of  the  Court  of  Common  Pleas  for  Union  District,  to 
ascertain  whether  the  defendant  is  or  is  not  entitled  to  compensation 
beyond  the  commissions  of  two  and  a  half  per  cent,  for  receiving,  and 
two  and  a  half  per  cent,  for  paying  out  the  assets  of  his  intestate  ;  and  if 
this  issue  be  found  for  him,  then  that  commissions  of  two  and  a  half  per 
cent,  for  receiving,  and  two  and  a  half  per  cent,  for  paying  out  the  assets 
since  1828,  and  such  extra  compensation,  be  deducted  from  the  amount 
decided  to  be  charged  against  him  ;  if  not,  that  the  commissions  of  two 
and  a  half  per  cent,  for  receiving,  and  two  and  a  half  per  cent,  for  paying 
out,  be  alone  allowed  ;  and  that  the  balance  found  to  be  due  by  the 
defendant,  as  administrator  of  Hiram  Coleman,  be  apportioned  by  the 


*469]  COLUMBIA,  DECEMBER,  1S36.  359 

Commissioner,  among  the  plaintiffs  and  the  other  creditors  of  Iliram 
Coleman.     Let  the  defendant  pay  the  costs  of  this  suit. 

Thomson  and  Dawkins,  for  appellant. 

Herndon,  contra. 

O'Neall,  J.  This  Court  instruct  me  to  say,  that  they  are  satisfied 
with  the  decree  of  the  Judge,  who  sat  for  the  Chancellor  in  this  case.  It 
is  necessary  barely  to  remark,  that  one  of  the  grounds  of  appeal  is 
founded  in  error.  There  is  no  limitation  in  the  decree,  such  as  the 
ground  supposes,  preventing  the  jury  who  may  try  the  issue  from  allowing 
live  per  cent,  on  the  whole  estate,  if,  under  the  instructions  of  the  law 
Judge,  they  should  think  the  ^defendant  entitled,  on  the  facts,  to  r^^*jr. 
so  much  extra  compensation.  The  Circuit  decree  is  therefore  '- 
affirmed. 

Chancellors  De  Saussure,  Johnson,  Harper  and  Johnston,  and 
Justices  Gantt,  Richardson,  Evans  and  Butler,  concurred. 


James  Pickett,  v.  James  B.  Pickett,  and  Others. 

Sberiif's  sale  to  defendant  set  aside,  ■where  the  defendant,  witli  a  knowledge  that  tlie 
sheriff  had  agreed  to  postpone  the  sale,  urged  him  to  sell  when  the  croAvd  had  dis- 
persed, and  then  purchased  himself  at  a  great  sacrifice.  [*471] 

Defendant  assisted  a  debtor  to  remove  his  property  out  of  the  State,  witli  the  view 
to  defeat  liens  existing  here  against  it,  and  to  obtain  priority  for  himself  in 
another  State:  Jleld,  that  this  was  such  a  fraud  as  will  deprive  him  of  his  prior- 
ity in  the  foreigp  jurisdiction ;  and  he  was  ordered  to  account  here,  for  the  funds 
received  there.  [*471] 

On  a  bill  filed  by  one  judgment  creditor  against  another  to  set  aside  a  sheriff's  sale  of 
debtor's  property  as  fraudulent,  and  to  recover  funds  which  defendant  had  fraud- 
ulently obtained,  it  was  held  by  a  majority  of  the  Court,  that  the  defendant  could 
not  avail  himself  of  usury  in  the  original  cause  of  action  on  which  the  plaiu- 
tifl:"'s  judgment  was  founded.  Ch.  Harper,  and  Js.  Gantt  and  O'Neall,  dissenting. 
[*473] 

Fairfield,  July,  1835. 

The  following  is  the  brief  of  the  appellant's  counsel : — 
The  bill  in  this  case  was  filed  by  the  plaintiff,  as  a  judgment  creditor 
of  Reuben  Pickett,  Robert  L.  Knox  and  Susannah  Pickett,  against  the 
defendants,  on  the  1st  of  February,  1832. — 1.  To  set  aside  the  sale  of 
three  tracts  of  land,  situate  on  Wateree  Creek,  in  Fairfield  ;  one  belong- 
ing to  the  said  Reuben  Pickett,  another  to  the  said  Robert  L.  Knox, 
and  the  third  to  the  said  Susannah  Pickett,  and  which  defendant,  Pickett, 
purchased  at  the  sheriff's  sale  on  the  8th  April,  1828,  on  the  ground  of 
alleged  fraud  and  imposition  in  effecting  a  levy  and  sale  of  said  lands, 
and  the  inadequacy  of  price  :  2.  To  set  aside  two  judgments  in  favor  of 
said  James  B.  Pickett ;  one  for  $3000,  against  Robert  L.  Knox,  Reuben 
Pickett  and  Susannah  Pickett,  and  the  other  for  $2293  53,  against 
Robert  L.  Knox  and  Susannah  Pickett,  both  confessed  on  the  8th  of 
April,  1828,  on  the  ground  of  alleged  fraud  in  obtaining  said  judgments, 


380  SOUTH    CAROLINA    EQUITY    REPORTS.  [*'i70 

with  a  view  to  deprive  plaintiff  of  the  means  of  obtaining  satisfaction  of 
his  judgment :  3.  To  set  aside  the  sales  of  certain  negro  slaves  alleged  to 
have  been  the  property  of  the  said  Reuben  Pickett,  llobert  L.  Knox  and 
Susannah  Pickett,  made  by  the  sheriffs  of  Lancaster  and  Fairfield,  and 
purchased  by  defendant,  Pickett,  and  his  agent,  on  the  ground  of  alleged 
fraud  and  imposition  on  the  part  of  said  defendant,  in  procuring  a  levy 
of  said  negroes  and  a  sale  of  them  at  an  under  value  :  4.  To  compel  said 
defendant  to  account  for  the  value  of  certain  negro  slaves  and  other  pro- 
perty, which  the  said  Reuben  Pickett  carried  from  the  State  of  South 
Carolina  to  Mississippi  or  Louisiana,  on  the  ground  that  defendant, 
^  ,^,-|  Pickett,  *aided  said  Reuben  Pickett  in  carrying  off  said  property, 
-^  with  a  view  to  defraud  plaintiff. 

The  defeudant,  in  his  answer,  denies  all  the  allegations  of  fraud. 

The  Reporter  has  no  statement  of  the  evidence.  The  leading  facts, 
however,  are  stated  in  the  following  decree  : — 

Johnston,  Chancellor.  The  testimony  respecting  the  sale  of  the 
Wateree  lands,  leave  no  doubt  of  the  invalidity  of  that  sale.  The  sheriff 
announced  that  his  sales  were  over,  and  thereby  dispersed  the  crowd, 
among  whom  was  a  man  of  substance  who  attended  to  bid,  and  who  only 
left  the  ground  in  consequence  of  the  sheriff's  public  declaration  that  he 
had  closed  his  sales.  The  defendant,  Pickett,  with  a  full  knowledge  that 
the  sheriff  had  put  off  his  sales,  and  that  the  crowd  had  dispersed,  as- 
sisted in  urging  on  the  sales  after  a  considerable  lapse  of  time,  and  within 
a  very  few  minutes  before  the  expiration  of  the  selling  hours,  when  few 
persons  were  present,  and  no  time  was  left  for  them  to  collect,  and  bought 
at  an  enormous  sacrifice. 

Now,  if  he  had  not  urged  the  sale,  (which  he  does  not  deny — his  de- 
nial is  that  he  delayed  it,)  if  he  had  not  urged  it,  but  as  a  mere  spectator 
had  seen  the  sheriff"  first  openly  declare  the  sales  over,  and  then  at  a  late 
hour,  in  the  presence  of  a  very  few  persons,  all  the  rest  having  gone  off 
in  consequence  of  the  sheriff's  declaration,  put  up  the  land,  could  he  con- 
scientiously assist  the  sheriff  in  such  a  fraud  by  purchasing  from  him  ? 
But  the  evidence  is  that  he  drove  the  sheriff  to  it. 

With  respect  to  the  sales  of  the  slaves,  there  is  something  suspicious  ; 
but  not  enough  to  set  them  aside.  The  prices  of  those  sold  at  Lancaster 
must  be  placed  to  the  credit  of  the  executions,  according  to  their  pri- 
ority. 

It  appears  to  me  unsafe,  upon  the  evidence  offered,  to  pronounce  the 
judgments  held  by  the  defendant,  James  B.  Pickett,  which  are  impugned, 
fraudulent. 

The  testimony,  (the  weight  of  it,)  I  think,  goes  to  establish  that  de- 
fendant, Pickett,  did  assist  Reuben  Pickett  in  carrying  his  slaves  and 
other  personal  property,  beyond  the  reach  of  the  liens  which  bound  them 

*4721  ^^^"^"^  '  ^^^^  ^^^^  ^^^^  ^  ^^*^^^'  ^^  defeat  those  *liens.  This  I  take  to 
"-'  be  such  a  fraud  as  will  deprive  him  of  the  priority  he  obtained  in 
payment  in  the  foreign  jurisdiction  to  which  he  aided  in  carrying  the 
property.  He  must  therefore  account  for  what  he  received  in  Louisiana, 
and  apply  it  to  the  executions  here,  according  to  their  rank. 

It  is  decreed  that  the  sales  of  the  "Wateree  land  be  set  aside ;  and  that 
the  Commissioner  do  (after  duly  advertising)  proceed  to  sell  the  same  for 


*472]  COLUMBIA,    DECEMBER,    1836.  361 

cash,  on  the  first  convenient  sale  day  ;  and  that  he  do  liold  a  reference 
and  state  the  accounts  accordhig  to  the  foregoing-  opinion,  to  sliow  how 
the  sums  received  in  Louisiana,  the  funds  of  the  Lancaster  sale,  and  the" 
proceeds  of  the  re-sale  of  the  land,  shall  be  applied.  James  B.  Pickett 
to  pay  the  costs. 

Defendant,  Pickett,  moved  to  reverse  the  decree  of  the  Chancellor,  on 
the  following  points  : — 

1.  Because  there  was  no  sufficient  ground  for  setting  aside  the  sale  of 
the  Wateree  land.  A  sale  by  the  sheriff  cannot  be  set  aside  for  inad- 
equacy of  price  ;  and  if  there  was  any  misconduct  in  offering  the  land  for 
sale  at  the  time  it  was  offered  and  sold,  it  was  the  misconduct  of  the 
sheriff  alone,  and  for  which  defendant  ought  not  to  be  answerable. 

2.  Because  it  appearing,  from  the  investigation  of  the  case,  that  the 
negroes  sold  at  Lancaster  Court  House  did  not  belong  to  Reuben  Pickett, 
for  whose  debt  they  were  sold,  but  to  another  person  ;  and  the  same 
having  been  returned  by  the  defendant,  Pickett,  to  the  rightful  owner, 
none  of  the  judgments  against  Keuben  Pickett  should  be  credited  with 
the  sum  which  said  negroes  brought  at  said  sale. 

3.  Because  Reuben  Pickett,  having  died  in  the  State  of  Louisiana, 
(the  place  of  his  domicil,)  his  property  in  that  State  was  subject  to  the 
laws  of  Louisiana,  where  alone  it  could  be  legally  administered  ;  and  the 
defendant,  Pickett,  had  a  right  to  avail  himself  of  the  opportunity  of  ob- 
taining payment  of  his  just  demands  against  the  estate  of  said  Reuben 
Pickett,  in  conformity  to  the  laws  of  the  State  ;  and  he  ought  not  to  be 
deprived  of  the  priority  of  payment  given  by  the  foreign  jurisdiction  ; 
more  especially  in  favor  of  plaintiff's  demand,  which  was  clearly  proved 
to  be  usurious. 

4.  Because  plaintiff's  demand  was  clearly  proved  to  be  usurious  and 
fraudulent,  and  therefore  he  was  not  entitled  to  the  aid  *of  a 
Court  of  Equity  for  the  purpose  of  giving  him  the  priority  in 
payment  of  such  a  demand. 

Clarke  and  MWowell,  for  the  appellant. 

Li  July,  1836,  the  Court  of  Appeals  made  the  following  decree  : — 
It  is  ordered  and  decreed,  that  the  decree  of  the  Chancellor  be  af- 
firmed, so  far  as  respects  the  setting  aside  of  the  sale  of  the  land  made 
by  the  sheriff  of  Fairfield  District  to  the  defendant,  James  B.  Pickett,  as 
the  property  of  the  deceased,  Reuben  Pickett ;  and  that  the  land  be  re- 
sold in  pursuance  of  the  decree. 

Chancellors  Johnson  and  Harper,  and  Justices  O'Neall,  Gantt, 
Richardson,  Evans,  Earle  and  Butler,  concurring. 

At  this  term,  Chancellor  Johnston  delivered  the  following  opinion  : 
The  majority  of  the  Court  is  satisfied  with  so  much  of  the  circuit  de- 
cree as  concludes  from  the  evidence,  that  James  B.  Pickett  assisted  Reu- 
ben Pickett  to  carry  his  personal  property  beyond  the  operation  of  the 
plaintiff's  lien,  for  the  purpose  of  defeating  it  and  obtaining  a  preference 
on  it ;  and  entertain  no  doubt  that  this  conduct  was  a  fraud  against  which 
the  plaintiff  is  entitled  to  relief 

There  is  another  point,  however,   of  some  difficulty.     TIic  answer  of 
James  B.  Pickett  charges  that  the  plaintiff's  judgment  is  founded  on  a 


[*47 


o 


362  SOUTH    CAROLIJv^V    EQUITY    REPORTS.  [*473 

usurious  contract ;  and  (without  offering  to  pay  the  principal  and  inter- 
est actually  dne)  insists  that  the  usury  deprives  the  plaintiff  of  all  right 
to  the  relief  he  seeks. 

This  ])oint  has  occasioned  much  hesitation  here.  My  firm  conviction, 
after  mature  reflection,  is  that  the  objection  is  flagrantly  against  principle, 
and  but  indifferently  supported  by  authority  :  and  I  shall  now  proceed  to 
give  the  grounds  of  this  opinion. 

In  1  Fonblanque,  25,  the  general  principle  is  laid  down,  that  if  one 
come  into  equity  to  have  an  instrument  given  on  an  usurious  considera- 
tion cancelled,  he  will  be  relieved  only  on  terms  of  his  paying  what  is 
bo7ia  fide  due ;  and  if  his  bill  does  not  contain  an  offer  to  do  this,  a  de- 
murrer will  lie  to  it.  But  if  the  party  claiming  under  such  instrument 
comes  into  equity  to  set  it  up,  the  Court  will  resort  to  the  letter  of  the 
statute,  which  condemns  this  contract. 

In  Fitzroy  v.  Gwillim,  1  T.  R.  153,  the  plaintiff  had  pawned  goods  on 
an  usurious  contract ;  and  without  paying  principal  and  lawful  interest, 
^ ^  -,  brought  trover  for  the  goods.  Per  Lord  Mansfield,  *Ch.  J.  "A 
-i  lender  upon  an  usurious  contract  is  precluded  from  recovering 
any  thing  on  that  contract ;  but  if  the  borrower  seeks  relief,  he  must  first 
do  what  is  right  between  the  parties.  Here  the  plaintiff  did  not  tender 
what  had  been  actually  advanced. " 

Mason  V.  Gardiner,  4  Br.  Ch.  Rep.  436,  was  a  bill  to  have  a  bond  in- 
fected with  usury  delivered  up.  A  demurrer  was  sustained  because  the 
borrower  made  no  tender  of  the  real  debt. 

Rogers  v.  Rathbun,  1  John.  Ch.  Rep.  367,  was  a  bill  to  enjoin  a  suit 
then  pending,  on  the  ground  that  the  suit  was  on  an  usurious  contract. 
The  injunction  was  denied  because  the  bill  did  not  offer  to  pay  the  sum 
actually  due. 

In  Scott  V.  Nesbit,  2  Br.  Ch.  Rep.  641,  (S.  C.  2  Cox  Ch.  Rep.  183,) 
the  bill  was  by  Mrs.  Scott,  against  the  executors  of  her  debtor  for  an 
account  of  assets,  and  another  creditor  came  before  the  master  and  proved 
a  judgment  debt,  which  the  plaintiff  objected  to  on  the  score  of  usury. 
The  objection  was  overruled  because  the  judgment  was  not  examinable, 
(2  Cox  184)  ;  the  Lord  Chancellor  ^^Thurlow)  at  the  same  time  observ- 
ing, that  if  this  were  not  so,  still  the  plaintiff  was  not  entitled  to  object, 
inasmuch  as  she  had  not  offered  to  pay  the  sum  really  due  on  the  usurious 
contract.     I  shall  have  occasion  to  recur  to  this  case. 

These  authorities  sufiiciently  support  the  doctrine  laid  down  by,  Fon- 
blanque. They  establish  this,  and  no  more — that  while  the  contract  re- 
mains in  pais,  not  having  passed  into  judgment,  it  is  examinable.  That 
if  suit  is  l)rought  to  obtain  a  judgment  on  it,  or,  as  Ch.  J.  Kent  ex- 
presses it,  in  Jackson  v.  King,  10  John.  Rep.  195,  if  the  suit  is  upon 
the  very  instrument  itself,  no  recovery  can  be  had.  That  if,  on  the  other 
hand,  relief  is  sought  against  it,  this  will  be  granted  only  on  equitable 
terras.  If  the  lender  is  the  actor,  he  will  be  turned  out  of  Court :  if  the 
borrower  is  the  actor,  he  also  will  be  turned  out,  unless  he  will  do  equity. 

But  no  case  can  Ije  found,  it  is  believed,  where  the  borrower  has  been 
relieved,  or  the  lender  ejected  from  the  forum,  when  judgment  has  been 
obtained  on  the  contract,  except  when  the  proceeding  is  in  bankruptcy, 
pr  when  the  judgment  has  been  obtained  by  fraud,  or,  perhaps,  when  the 
judgment  was  a  constituent  part  of  the  usurious  agreement  itself. 


I 

4 


*474]  COLUMBIA,  DECEMBER,  1836.  363 

In  bankruptcy  the  rule  is  peculiar.  No  part  of  the  debt  is  allowed, 
whatever  be  the  form  of  the  security.  That  never  was  the  rule  iu  equity. 
9  Yes.  84. 

*When  the  judgment  has  been  obtained  by  fraud,  it  will  be  r^,^^ 
set  aside,  on  account  of  the  fraud,  not  on  account  of  the  uaury.  L  ^'^ 
— Thompson  D.  Berry  and  Van  Buren,  3  John.  Ch.  Rep.  395,  is  very 
much  to  the  point.  That  was  a  bill  by  the  borrower  to  be  relieved  of 
the  usuary  contained  in  two  judgments :  one  held  l)y  each  of  the  de- 
fendants. There  was  no  doubt  of  the  usury  in  both  instances.  Yau 
Buren's  judgment  was  allowed  to  stand  as  a  conclusive  protection  of  the 
contract  behind  it,  because  obtained  fairly  ;  but  that  of  Berry  was  set 
aside  because  obtained  by  fraud ;  and  the  contract  itself  was  thus 
exposed  to  examination. 

On  what  principle  was  Yan  Buren's  judgment  allowed  to  stand  but 
this — that  all  objections  to  the  contract  were  closed  by  the  judgment, 
and  that  the  usury  was  res  judicata  ? 

On  what  principle  was  Berry's  judgment  denied  to  be  decisive  on  the 
usury,  as  res  judicata,  but  that  the  borrower  had  been  shut  out  of  his 
defence  by  fraud  ? 

With  respect  to  judgments  taken  as  part  of  the  usurious  agreement 
itself,  it  might  be  conceded  that  they  cannot  stand  :  but  this  concession 
would  not  affect  the  position  I  have  taken.  Such  judgments  might  be 
viewed  as  mere  stipulations  inserted  in  the  usurious  contract,  to  waive 
the  benefit  of  the  law.  This  is  the  light  in  which  a  case  might  be 
viewed,  when,  contemporaneously  with  the  usurious  agreement  and  as 
part  of  it,  a  warrant  of  attorney  was  given  by  the  borrower  to  enter  up  a 
judgment ;  or  when  the  loan  was  made  on  a  confession  of  judgment  for 
the  usury. 

That  a  judgment  fairly  obtained  upon  a  usurious  contract  is  conclusive, 
has  been  .repeatedly  held  in  this  State.  As,  for  instance,  in  Fowler  v. 
Stewart,  where  the  suit  was  on  a  judgment  which  had  been  rendered  on 
usurious  notes.  The  defendant  was  not  allowed  to  go  behind  the  judg- 
ment and  examine  the  contract  on  which  it  was  founded.  Numberless 
cases  of  a  similar  character  have  occurred  where  a  like  decision  was 
made.     See  also  1  Murphy,  225,  Branton  v.   Dixon. 

The  case  I  have  referred  to,  show  that  when  relief  has  been  refused  to 
the  lender,  or  granted  to  the  borrower,  the  usurious  contract  had  never 
passed  into  judgment,  except  in  bankruptcy  ;  or  when  the  judgment  was 
unfairly  obtained,  or  was  itself  the  usurious  security. 

To  allow  the  borrower  to  neglect  his  defence  at  law,  and  then  make 
his  omission  the  ground  of  application  of  this  Court,  would  *be  p^^rg 
no  better  than  a  permission  for  laches.  It  would  give  him  choice  L 
of  jurisdictions — authorize  him  to  fold  his  arms  when  the  law  gave  him 
ample  remedy,  and  when  the  death  of  witnesses  or  other  accident  had 
deprived  his  creditor  of  power  to  disprove  his  allegation  of  usury,  come 
into  this  Court  and  obtain  an  advantage,  to  which,  perhaps,  by.  the  real 
facts  of  the  case  he  is  not  entitled.  But  such  neglect  is  not  favored  in 
this  Court ;  the  settled  doctrine  of  which  is  truly  stated  by  Lord  Eldon, 
in  Ware  v.  Horwood,  14  Yes.  31,  to  be,  "that  the  omission  to  take 
advantage  of  the  usury,  at  law,  is  no  ground  for  relief  in  Equity."  If  the 
borrower,  when  sued  upon  the  judgment  rendered  on  the  usurious  con- 


364  SOUTH    CAROLINA   EQUITY    REPORTS.  [*476 

tract,  may  raise  the  objection  wliicb  he  neglected  when  the  judgment  was 
obtained,  what  is  this  but  to  give  him  two  opportunities  to  try  the  same 
question  ?  Maxwell  v.  Connor,  1  Hill's  Ch.  Rep.  14.  What  would  this 
be,  but  to  prostrate  the  whole  doctrine  of  res  judicata,  and  open  the 
way  to  endless  litigation  ? 

One  of  James  B.  Pickett's  judgments  against  Reuben  Pickett,  is 
junior  to  that  of  the  plaintiff. 

It  is  not  doubted  by  any  one  that  the  plaintiff's  judgment  is  conclusive 
on  Pv,euben  Pickett.  The  true  question,  then,  is,  whether  Reuben 
Pickett's  junior  creditor  can  take  an  advantage  to  which  it  is  conceded 
Reuben  himself  is  not  entitled.  I  think  the  junior  creditor  has  no  better 
right  than  his  debtor,  and  that  whatever  binds  the  latter,  binds  the 
former,  unless  when  the  former  is  defrauded. 

Was  it  ever  heard  of,  that  a  creditor  wTio  had  proved  his  demand  and 
obtained  judgment  on  it  against  his  debtor,  was  obliged  to  prove^it  over 
again  when  the  contest  was  between  himself  and  another  creditor  ? 
Unless  obtained  by  fraud  and  collusion  between  him  and  the  debtor,  it  is 
conclusive  on  all  others. 

If  instead  of  James  B.  Pickett's  fraudulently  obtaining  possession  of  the 
avails  of  Reuben's  property,  the  sheriff  had  sold  that  property  and  the 
avails  were  now  in  his  hands,  can  any  man  be  found  to  contend  for  a 
proposition  so  absurd,  as  that  James  B.  could  question  the  plaintiff's 
right  to  draw  from  the  sheriff  the  amount  of  his  judgment  ?  And  shall 
this  defendant  keep  money  to  which  he  is  not  entitled,  merely  because  he 
has  got  it  by  unfair  means  ?  Shall  he  be  permitted  to  change  the 
unquestionable  rights  of  the  parties,  by  fraud  ?  and  because  that  fraud 
renders  it  necessary  to  the  plaintiff  to  come  here  to  restore  things  to  that 
^  ,Kr.-]  *posture  in  which  the  law  had  placed  them,  take  advantage  of  his 
-'  own  wrong  ? 

It  is  a  great  misconception  to  suppose  the  plaintiff  came  here  to  set 
up  the  usurious  contract.  He  had  already  recovered  on  that,  and 
obtained  a  lien  on  his  debtor's  property.  The  law  gave  him  that  lien. 
He  has  been  deprived  of  it  by  fraud  ;  and  he  comes  here  to  undo  that 
fraud.     That  is  his  only  purpose  :  he  asks  no  more. 

He  does  not  come  here  to  sue  on  his  contract ;  but  to  insist  on  his 
judgment  lien.  The  contract  lies  behind  the  judgment,  and  can  never 
be  assailed  until  the  judgment  has  been  set  aside. 

It  has  been  argued  that  Scott  v.  Nesbitt,  2  Bro.  Ch.  Rep.  641,  one 
of  the  cases  I  have  mentioned,  authorizes  James  B.  to  assail  the  plain- 
tiff's judgment. 

That  case,  is  reported  twice,  (2  Cox's  Ch.  Rep.  183.)  The  case  is 
stated,  and  the  argument  and  the  summary  of  the  Chancellor's  judgment 
given  by  Brown.  The  judgment  of  the  Chancellor  is  more  fully  reported 
by  Cox. 

The  case  is  briefly  this  :  Mrs.  Scott  brought  her  bill  to  have  an  account 
of  assets  from  the  defendants,  who  were  the  executors  of  her  debtor. 
The  case  was  referred,  with  leave  to  other  creditors  to  prove  their 
demands  before  the  master.  Among  the  demands  presented,  was  a 
judgment  obtained  by  the  executors  of  the  Countess  of  Macclesfield 
against  the  defendants,  on  an  usurious  bond  given  by  their  testator. 
Mrs.  Scott  objected  to  this  judgment  for  usury,  and  the  master  rejected 


*477]  COLUMBIA,  DECEMBER,   1836.  365 

it.  On  appeal  to  the  Lord  Chancellor,  (Thurlow,)  lie  alloioed  the  judg- 
ment to  stand,  and  that  for  the  fall  amount.  The  objection  to  the 
judgment  was,  that  there  was  no  judgment  in  the  life  of  the  testator —  . 
that  at  his  death  the  matter  rested  in  contract  infected  with  usury,  and 
that  a  judgment,  obtained  against  the  obligor's  executors,  gave  no 
preference  over  fair  creditors.  That  the  latter  were  at  liberty  to  take 
things  as  they  stood  at  the  debtor's  death,  and  insist  on  the  usury. 
Lord  Thurlow's  judgment  on  this  point  was,  that  "  This  judgment,  if 
fairly  obtained  before  the  decree  here,  gained  a  priority,  as  if  (jained  in 
the  testator'' s  life  ii7ne." 

What  was  this  but  to  concede,  in  the  fullest  terras,  that  if  the  testator 
had  been  alive,  the  judgment  would  have  bound  both  him  and  the  junior 
creditor  ? 

The  master's  decision  was  reversed,  and  the  judgment  stood  for  the 
full  amount. 

*It  is  true,  the  Lord  Chancellor  did  say,  that,   "  at  any  rate" —  r*^^*^ 
that  is,  whether  the  junior  creditor  was  bound  by  the  judgment  or  '- 
not,  she  could  not  object  to  the  usury,  inasmuch  as  she  had  not  offered  to 
pay  what  was  really  due.     But  this  was  evidently  by  way  of  offering  an 
additional  reason  for  his  judgment. 

That  my  construction  of  this  case  is  not  singular  or  unfounded,  appears 
by  what  Lord  Eldon  says  of  it,  in  Ware  v.  Horwood,  14  Yes.  31.  He 
states  his  understanding  thus  :  "  In  Scott  v.  Nesbit,  the  master  having 
disallowed  a  debt  on  the  ground  of  usury,  Lord  Thurlow  aUoiced  the 
debt  to  stand.''  For  what  reason  ?  IS'ot  because  the  junior  creditor  had 
not  tendered  principal  and  interest,  but — "  holding  that  the  omission  to 
take  advantage  of  the  usury  at  laiv,  ivas  no  ground  for  relief  in 
Equity. " 

Chancellor  Kent  quotes  the  case  in  French  v.  Shotwell,  5  John.  Ch, 
Rep.  565,  with  the  same  understanding  of  it. 

Having  mentioned  the  very  instructive  case  of  French  v.  Shotwell,  I 
must  say,  that  in  my  judgement,  one  more  conclusive  on  every  position  I 
have  taken,  cannot  be  required.  The  plaintiffs,  who  were  ])urchasers  of 
lands  bound  by  a  judgment  founded  on  usurious  bonds,  filed  their  bill  to 
have  the  lands  exonerated  from  the  judgment.  Chancellor  Kent,  after 
showing  that  Ten  Broeck,  the  vendor  of  the  land,  was  concluded  by  the 
judgment,  goes  on  to  show  by  the  clearest  reasoning,  that  subsequent 
purchasers  under  him,  with  notice  of  the  judgment  (not  of  the  usury,) 
could  not  impeach  the  judgment,  or  assume  a  remedy  which  he  had 
neglected.  He  insists[that  the  entering  up  of  the  judgment  was  notice  of 
the  lien  to  all  subsequent  purchasers :  and  observes,  that  "  He  who  con- 
fesses a  judgment,  or  suffers  it  to  pass  by  default,  is  concluded  from  de- 
fence, according  to  the  general  language  of  the  cases.  And  if  the  party 
himself,  who  is  the  victim  of  the  fraud,  or  usury,  chooses  to  waive  his 
remedy  and  release  the  other  party,  it  does  not  belong  to  a  subsequent 
purchaser  under  him,  to  recall  and  assume  the  remedy  under  him.  If  a 
judgment  was  fraudulent  by  collusion  between  the  parties  to  it  on  pur- 
pose to  defraud  a  subsequent  purchaser,  the  case  would  present  a  very 
distinct  question.  But  if  the  judgment  was  fraudulent  only  as  betAveeu 
the  parties,  it  is  for  the  injured  party  alone  to  apply  the  remedy.  If  he 
chooses  to  waive  it  and  discharge  the  other  party,  it  cannot  consist  in 


366  SOUTH    CAROLINA   EQUITY   REPORTS.  [*478 

justice,  or  sound  policy,  that  a  subsequeut  voluntary  purchaser,  knoicing 

*i*7Ql  o/^^'«^y"'^^'"''"'>  should  *be  competent  to  investigate  the  merits 

-■  of  the  original  transaction  as  between  the  original  parties." 

What  can  be  more  conclusive  than  this  view  ?  It  shows  clearlj^  I  think, 
that  persons  claiming  through  a  debtor,  cannot  object  to  a  senior  claim 
on  that  debtor,  unless  defrauded  hy  it ;  that  such  persons  cannot  object 
to  usury  as  usury,  but  as  fraud.  That  when  they  purchase  from  or 
credit  the  borrower,  with  notice  of  his  prior  obligations,  they  are  bound 
by  them,  because  not  defrauded  by  them. 

In  Moffet  V.  Cochran,  1  M'C.  Ch.  Rep.  441,  the  same  view  was 
taken  by  ray  brother  Johnson  in  delivering  the  opinion  of  the  Court. 
In  this  case,  by  the  way,  the  usurious  instruments  objected  to  by  the 
other  creditors  had  not  passed  into  judgment. 

A  similar  view  was  taken  in  Smith  v.  Fisher,  2  De  Saussure's  Rep.  215. 
A  junior  creditor  filed  his  bill  against  a  senior  creditor,  whose  demand 
had  not  passed  into  judgment,  for  a  discovery  whether  the  senior  demand 
was  not  usurious,  and  to  be  relieved  against  it.  The  Court  sustained  a 
demurrer  on  the  ground  that  the  bill  charged  usury  only,  and  not  fraud. 
Is  not  this  case  completely  decisive  of  the  one  before  the  Court  ? 

It  seems  to  be  somehow  conceived,  that  the  allowing  the  plaintiflF's 
lien  a  preference  over  James  B.  Pickett's,  would  defraud  the  latter, 
merely  becauseit  would  diminish  the  fund  out  of  which  he  is  to  be  paid. 

If  loss  occasioned  in  this  way  constitutes  a  fraud  on  a  junior  creditor, 
how  could  the  decisions  in  Smith  v.  Fisher,  and  Moffet  v.  Cochran,  have 
been  made  ?     They  appear  to  conclude  tlie  very  point. 

If  the  sheriff  had  sold  the  debtor's  property,  and  held  the  avails,  the 
plaintiff  could  have  drawn  the  amount  of  his  debt.  It  will  not  be  con- 
tended that  that  would  have  defrauded  James  B.  Pickett.  But  would 
not  his  loss  have  been  as  great  in  that  case  as  in  this  ? 

My  opinion  is,  that  the  Circuit  decree  should  be  affirmed  throughout ; 
and  the  mnjority  of  the  Court  concurring  in  this  opinion,  it  is  ordered 
that  the  motion  be  dismissed. 

Chancellor  De  Saussure,  and  Justices  Richardson,  Evans  and 
Butler,  concurred. 

JoriNSON,  Chancellor.  I  am  not  satisfied  that  the  defendant  ought  to 
*4801  ^^  charged  on  account  of  any  aid  he  might  have  given  *to  Reuben 
-^  Pickett,  in  removing  out  of  the  State  ;  but  on  the  question  as  to 
the  right  of  the  defendant  to  open  and  examine  the  judgment  obtained 
by  plaintiff  against  Reuben  Pickett,  on  account  of  usury  in  the  contract 
on  which  the  judgment  is  founded,  I  concur  entirely  in  the  opinion  deliv- 
ered by  my  brother  Johnston. 

Harper,  Chancellor.  We  concur  very  fully  with  the  Chancellor  on  all 
the  points  which  he  has  considered  and  decided.  The  sale  of  the  land 
was  such  a  transaction  as  can  never  be  permitted  to  stand  in  this  Court. 
He  has  directed  the  proceeds  of  the  slaves  sold  at  Lancaster  to  be  paid 
over  to  the  executions  according  to  their  legal  priorities,  according  to 
the  long  and  well-established  rule  in  this  State.  We  perceive  no  reason 
to  dissent  from  his  conclusion  on  the  testimony  that  the  defendant,  James 
B.  Pickett,  did  combine  with  Reuben  Pickett,  and  assist  him  in  claudes- 


*480]  COLUMBIA,    DECEMBER,    183().  367 

tiiiely  and  frandvilently  removino:  bis  property  out  of  tlie  State,  for  tlic 
purpose  of  eluding  the  plaiutili''s  execution.  The  obvious  consciiuenco 
on  equitable  principles  is,  that  he  cannot  be  permitted  to  retain  an  advan- 
tage which  he  has  gained  by  means  of  that  fraud. 

But  there  is  another  point  which  seems  not  to  have  been  brought  to 
the  view  of  the  Chancellor,  and  therefore  not  considered  or  decided  by 
him.  It  is,  however,  made  in  the  cause,  and  argued  as  an  appeal  to  us, 
and  it  is  therefore  necessary  that  we  should  consider  it.  It  appears  from 
the  testimony  of  two  of  the  witnesses,  (and  I  know  of  no  reason  why  they 
should  not  be  credited,)  that  the  contract  on  which  the  judgment  of  plain- 
tiff was  confessed  was  usurious.  It  is  therefore  necessary  to  inquire 
whether  he  is  entitled  to  the  aid  of  the  Court  in  enforcing  the  judgment 
obtained  on  such  contract. 

I  believe,  on  the  preponderance  of  authority,  the  rule  of  equity  to  be 
as  stated,  1  Fonb.  25,  n.:  that  a  party  coming  into  equity  to  be  relieved 
from  an  usurious  contract,  must  do  equity  by  offering  to  pay  what  is  really 
due,  or  the  Court  will  not  interfere  in  his  behelf ;  but,  if  a  party  comes 
to  enforce  a  usurious  contract,  the  Court  will  act  on  the  letter  of  the 
statute — that  is  to  say,  it  will  regard  the  contract  as  void,  and  dismiss  his 
bill.  It  is  said,  lb.  39,  40,  that  if  a  fraudulent  person  come  into  Court, 
he  shall  not  have  what  was  bona  fide  lent.  So  it  was  said  by  Lord 
Mansfield,  professing  to  consider  the  subject  on  equitable  principles  : 
*"  A  lender  upon  an  usurious  contract,  is  precluded  from  recover-  r^j^oi 
ing  any  thing  upon  such  a  contract.  But  if  the  borrower  seek  '- 
relief,  he  must  first  do  what  is  equitable  between  the  parties." — Fitzroy 
V.  Gvvillim,  1  T.  R.  154. 

In  Mason  v.  Gardiner,  4  Br.  C.  R.  436,  a  demurrer  was  sustained  to  a 
bill  brought  to  have  an  usurious  bond  delivered  up  for  want  of  an  offer 
to  pay  what  was  due.  It  appears  from  the  argument  that  it  was  a  cross 
bill,  and  it  was  admitted  that  the  original  bill  brought  to  enforce  the 
contract  must  be  dismissed.  In  Benfield  v.  Solomons,  9  Ves.  84,  it  was 
said  by  Lord  Eldon,  that  the  plaintiff  to  a  bill  cannot  have  relief  on  an 
usurious  contract  without  an  offer  to  pay ;  but  that  an  usurious  creditor 
coming  in  bankruptcy,  shall  have  nothing.  But  as  to  this  point  I  am 
not  aware  that  there  is  any  serious  doubt. 

A  question  of  more  difficulty  is,  whether,  as  the  plaintiff  has  obtained  a 
judgment  at  law,  either  the  defendant  himself,  or  his  other  creditors,  can 
enter  into  the  consideration  of  the  judgment.  It  is  admitted,  upon  a 
well-known  equitable  principle,  that  if  a  judgment  had  been  obtained 
in  due  course  of  law,  in  which  the  party  had  an  opportunity  of  defend- 
ing himself  on  the  ground  of  usury,  and  he  had  omitted  to  do  so,  it 
would  have  been  too  late  for  him  to  come  into  equity  for  relief.  The  de- 
fendant himself,  and  all  privies,  would  have  been  concluded  by  the  ver- 
dict. But  in  this  case  the  judgment  was  by  confession.  In  Thompson  )'. 
Berry  and  Van  Buren,  3  John.  C.  R.  395,  Chancellor  Kent  relieved 
against  an  usurious  judgment  entered  upon  a  warrant  of  attorney  to  con- 
fess judgment,  though  he  refused  to  relieve  against  one  obtained  in 
due  course  of  law.  This  may  have  been,  though  not  directly  stated,  on 
the  ground  that  the  warrant  of  attorney  to  confess  was  part  of  the  original 
usurious  transaction.  It  does  not  appear  in  this  case,  so  far  as  I  can  see, 
whether  the  usurious  note  on  which  the  judgment  was  confessed,  was  cxe- 


368  SOUTH   CAROLINA   EQUITY   REPORTS.  [*-l-81 

cuted  with  a  view  to  bo  secured  by  the  confession.  It  was  an  old  debt, 
and  the  note  had  been  several  times  renewed.  But  whether  the  last  usu- 
rious renewal,  when  a  new  party  was  added  to  it,  was  made  with  a  view 
to  the  confesson,  does  not  distinctly  appear. 

The  case  of  Scott  v.  Nesbit,  2  Cr.  C.  R.  641,  was  one  in  which  an 
usurious  judgment  was  impugned  by  the  creditors  of  the  defendant.  The 
case  is  not  very  perspicuously  reported,  but  appears  to  be  this  :  A  bill  had 
*4821  ^^^^^  ^'^*-^  °'^  behalf  of  creditors  ^generally,  for  an  account  of  an 
-'  insolvent  estate  and  payment,  and  a  reference  to  the  Master  had 
been  ordered,  to  take  the  account.  The  plaintiff's  bill  was  to  have  an 
account  and  to  obtain  payment  of  a  judgment  which  had  been  recovered 
on  an  usurious  bond.  This  was  referred  to  the  same  Master  ;  in  fact  it 
was  included  in  the  former  order.  It  was  argued  that  the  judgment  must 
bind  until  it  was  got  rid  of  at  law.  The  Master  disallowed  the  whole  judg- 
ment. On  the  cause  coming  before  Lord  Thurlow,  he  thought  t-lie  gene- 
ral creditors  could  do  before  the  Master,  only  what  they  could  do  on  a 
bill  filed  by  them  against  the  judgment  creditors.  They  could  only  dis- 
place the  judgment  by  doing  what  was  just — that  is,  of  course,  by  paying 
what  was  really  due.  The  case  certainly  is  authority  that  the  creditors 
of  an  insolvent  may  go  into  the  consideration  of  an  usurious  judgment 
against  him.  Regarding  it  as  the  creditor's  bill,  he  held  them  bound  to 
offer  what  was  just;  leaving  us  to  infer  that  it  would  have  been  different 
if  it  had  been  merely  a  bill  by  the  usurious  judgment  creditor,  and  that  in 
that  case  the  demand  would  have  been  disallowed  altogether.  Indeed,  if 
the  creditors  were  not  concluded  by  the  judgment,  such  is  the  well  esta- 
blished general  rule  on  the  authorities  before  referred  to.  I  find  the  note 
of  a  case  of  which  I  have  not  the  original  report,  in  Hammond's  Digest, 
648,  tit.  Usury.  There  was  a  judgment  on  a  warrant-of-attorney  to  confess. 
An  issue  was  directed  to  try  the  fact  of  usury.  The  assignees  of  the 
bankrupt  defendant  had  agreed  that  the  plaintiff  might  prove  his  debt 
under  the  commission.  But  the  Court  held  this  to  mean  a  provable 
debt,  and  not  one  infected  with  usury.  It  is  true  that  in  bankruptcy, 
judgment  creditors,  as  to  the  receiving  of  dividends,  are  on  the  footing  of 
other  creditors.  But  the  case  shows  that  they  arc  not  bound  by  an 
usurious  judgment  against  the  bankrupt  debtor. 

The  case  of  French  v.  Shotwell,  5  John.  Ch.  Rep.  565,  has  been  sup- 
posed somewhat  at  variance  with  these  views.  But  I  do  not  perceive 
the  application  of  that  case.  There,  land  was  purchased  which  was  bound 
by  an  usurious  judgment  which  had  been  obtained  against  the  vendor. 
The  purchaser  filed  a  bill  to  set  aside  the  judgment.  Chancellor  Kent 
decided  that  he  was  a  privy  in  estate  with  the  vendor,  and  therefore  bound 
by  the  judgment.  He  could  take  the  land  no  otherwise  than  subject  to 
every  liability  to  which  it  was  subject  in  the  hands  of  the  vendor.  The 
vendor,  too,  had  before  filed  a  bill  to  be  relieved  against  the  judgment, 
*48S1  *'^'^*^  '^y  ^  compromise,  obtained  fairly  and  without  fraud,  his  bill 
-^  had  been  dismissed.     He  therefore  was  certaiidy  concluded. 

Certaiidy  creditors  are  not  privies,  in  any  sense  in  which  the  words 
have  been  used.  Is  there  any  question  but  that  the  creditors  of  an  in- 
solvent may  impeach  any  judgment  obtained  against  him  by  fraud  and 
collusion?  Is  there  any  question  but  that  they  may  set  aside  a  voluntary 
judgment  confessed  by  such  debtor  ?  This  is  exactly  on  the  same  principle 


*483]  COLUMBIA,   DECEMBER,    183G.  369 

that  they  may  set  aside  a  voluntary  conveyance;  and  even  subsciiuent 
creditors  may  do  this,  if  the  party  were  indebted  at  the  time,  wliich  I 
suppose  can  hardly  be  doubted  with  respect  to  the  debtor  in  this  case. 
A  judgment  confessed  on  a  contract  declared  by  law  to  bo  absolutely 
void,  is  in  effect  a  voluntary  judgment.  The  law  imputes  blame  to  both 
the  parties  to  an  usurious  contract,  and  such  confession  may  well  be  re- 
garded as  being  always  made  by  collusion  to  the  prejudice  of  creditors. 

The  present  plaintiff  comes  to  enforce  an  usurious  judgnacnt.  It  is 
immaterial  what  may  be  the  fraud  of  the  defendant ;  on  the  principles 
laid  down,  it  should  seem  that  equity  would  interfere  in  favor  of  neither. 

Justices  Gantt  and  O'Neall  concurred  in  this  opinion. 

O'JS'eall,  J.  I  am  also  against  the  Circuit  decree,  on  the  ground  that 
there  was  uo  fraud  in  sending  the  negroes  out  of  the  State, 


Eryin  Brunson,  and  Wife,  v.  James  King,  Administrator,  and  Others, 
Heirs  of  Andrew  Hunter. 

A.  H.  having  provided  for  his  lawful  children,  and  having  several  illegitimate 
children,  and  about  to  marry  their  mother,  in  order  to  provide  lor  liis  natural 
children,  and  his  intended  wife,  and  the  issue  of  the  marriage,  executed  a  deed  of 
all  his  real  estate  and  twenty-one  slaves,  in  trust  for  himself  during  life,  and  at 
his  death  one-fourth  part  thereof  for  his  natural  chihlren  in  fee  ;  one- third  of  the 
remainder  to  the  use  of  his  intended  wife  for  life,  and  then  to  the  children  of  their 
marriage  in  fee  ;  and  the  other  two-thirds  of  the  remainder  to  the  use  of  such 
persons  as  his  intended  wife  should  appoint,  reserving  to  himself  the  right  to 
revoke  or  alter  such  appointment,  and  in  default  of  appointment,  to  his  said  wife, 
her  heirs,  executors  and  assigns.  The  marriage  took  place,  and  A.  II.  acquired 
some  property  after  the  execution  of  this  deed.  By  his  will,  afterwards  executed, 
he  referred  to  and  confirmed  the  settlement,  and  by  a  general  residuary  clause, 
gave  all  the  rest  of  his  estate  to  the  children  of  his  last  marriage,  and  then 
declares  "  it  is  his  wish"  that  his  wife  and  children  remain  on  the  plantation  until 
another  place  be  provided,  and  that  his  mills  be  rented  and  his  negroes  hired  out, 
&c.,  and  other  dispositions  inconsistent  with  the  deed.  The  wife  made  no  appoint- 
ment. JTeld :  1.  That  the  deed  did  not  authorize  A.  H.  to  change  its  uses,  but 
merely  to  control  his  wife's  appointments  ;  2.  That  the  will  was  not  intended,  and 
could  not  operate,  as  a  revocation  of  the  uses  of  the  deed,  and  as  a  declaration  to 
other  uses  ;  and  3.  That  on  the  death  of  A.  H.  his  wife  took  an  absolute  estate 
in  the  remaining  two  thirds  described  in  the  deed.  [*4S4] 

Although  the  words  "  it  is  my  wish"  iu  a  will,  generally  operate  as  a  direct  bequest, 
yet  they  will  be  construed  to  mean  rattier  an  inclination  of  the  mind,  than  an  act- 
of  the  will,  where  a  different  construction  would  produce  inconsistency  and  repug- 
nance. [*490] 

Where  one  conveyed  in  trust,  reserving  a  life  estate  to  himself,  a  portion  of  his 
estate  to  such  persons  as  his  wife  should  appoint,  and  in  default  of  aiipointment 
to  her  heirs  and  assigns,  on  the  death  of  the  husband  the  wife  takes  an  absolute 
estate.  [*490] 

Before  Chancellor  De  Saussure,  at  Darlington,  February,  1836. 

Andrew  Hunter  had,  by  his  first  marriage,  five  sons,  John,  James, 
Andrew,  Dorrell  and  Isaac ;  and  after  the  death  of  his  wife,  he  had  four 
illegitimate  children  by  Mary  Andrews — that  is  to  say,  Laney  Andrews, 
Solon  Andrews,    Satyra  Andrews,   and    Cambyses  Andrews.      In  con- 


370  SOUTH    CAROLINA   EQUITY   REPORTS.  [*483 

templation  of  marriage  with  the  said  Mary  Andrews,  and  for  the 
^  -,  purpose  of  making  a  provision  for  her  *and  the  said  natural  child- 
J  ren,  and  for  the  lawful  issue  of  the  said  Mary,  by  the  testator, 
begotten  or  to  be  begotten,  the  testator,  by  deed  bearing  date  the  10th 
February,  1819,  conveyed  to  George  Bruce,  all  the  real  estate  whereof  he 
was  then  seized,  wherever  situate  or  being,  and  twenty-one  negro  slaves, 
by  name,  Asia,  Africa,  America,  young  Jack,  Alfred,  Asgill,  Salem, 
Howard,  young  Peter,  young  Flora,  Becky,  Catey,  Amey,  Esther, 
Bechard,  Maria,  Penny,  Clarissa,  Mowah,  Eliza  and  Louisa,  and  their 
future  issue  and  increase ;  in  trust  for  the  said  Andrew,  the  grantor, 
during  his  natural  life,  and  after  his  death,  so  much  thereof  to  the  use  of 
the  said  Laney  Andrews,  Solon  Andrews,  Satyra  Andrews  and  Cambyses 
Andrews,  his  said  illegitimate  children,  their  heirs  and  assignees  forever, 
as  shall  be  equal  to  one-fourth  part  of  the  said  real  estate  and  slaves,  and 
of  such  other  real  and  personal  estate  as  he  had  already  given  them,  or 
any  of  them,  taking  into  the  estimate  of  the  said  one-fourth  part  such 
real  and  personal  estate  as  aforesaid  by  him  given  to  them,  or  any  of  them 
— intending  thereby  to  make  as  large  a  provision  for  them  as  by  law  he 
was  permitted  to  make,  to  be  equally  divided  between  them,  so  that  their 
shares  at  the  death  of  the  said  Andrew  Hunter,  the  grantor,  should  be 
equal ;  and  upon  the  further  trust,  that  on  the  death  of  the  grantor,  the 
said  Andrew  Hunter,  the  said  George  Bruce  should  stand  seized  of  one- 
third  part  of  the  remainder  of  the  said  real  and  personal  estate',  to  the 
separate  use  of  the  said  Mary,  his  intended  wife,  for  life ;  and  after  her 
death  to  the  use  of  such  child  or  children  of  the  said  Mary,  by  the  said 
Andrew,  the  grantor,  begotten,  or  might  thereafter  be  born  and  be  living 
at  the  time  of  her  death.  And  upon  the  further  trust,  that  the  said 
George  Brnce  should  stand  seized  and  possessed  of  the  other  two-thirds 
of  the  remainder  after  the  death  of  the  said  Andrew  Hunter,  the  grantor, 
to  the  use  of  such  person  or  persons  as  the  said  Mary  might  by  deed, 
under  hand  and  seal,  or  by  her  last  will  and  testament  limit  and  appoint ; 
and  on  failure  of  such  limitation  and  appointment,  to  the  said  Mary,  her 
heirs,  executors,  administrators  and  assigns  forever,  I'eserving  to  himself, 
*4.851  *^^o^^'6ver,  the  power  of  revoking  any  limitations  and  appointments 
-I  the  said  Mary  might  make,  and  of  declaring  the  uses  of  the  said 
two-third  parts  of  the  said  remainder,  for  the  purpose  however,  alone,  of 
making  provision  for  any  legitimate  clnkl  or  children  of  the  said  Andrew, 
the  grantor,  now  born  or  hereafter  to  be  born  ;  and  reserving  also  the 
power  of  settling,  disposing  of,  changing  or  exchanging,  all  or  any  part 
of  the  said  real  or  personal  estate,  the  proceeds  thereof  being,  however, 
subject  to  the  same  uses,  limitations  and  conditions  as  the  original  estate. 

The  marriage  contemplated  by  this  deed  was  had  and  solemnized,  and 
the  issue  of  the  marriage  was  three  children,  Mandanna,  Mary  and 
Caroline. 

On  the  16th  May,  1822,  the  testator  made  and  executed  his  last  will 
and  testament,  wherein,  after  the  usual  introductory  clauses,  he  says  :  "  I 
do  by  these  presents  confirm  a  marriage  deed  or  settlement,  dated  the 
10th  February,  1819,  by  me  made  on  the  day  above  mentioned  and  at 
the  time  of  my  marriage  with  my  present  wife,  Mary,  in  which  deed  or 
settlement  George  Bruce  is  trustee."  He  then  recites  that  he  had  already 
sufficiently  provided  for  all  the  children  of  his  first  marriage,  and  had  put 


*485]  COLUMBIA,  DECEMBER,  1836.  371 

them  in  possession  of  their  estates,  and  proceeds  thus  :  "  I  give,  devise 
and  bequeath  all  the  residue  and  remainder  of  my  real  and  personal 
estate  to  my  three  youngest  daughters,  Mandanna,  Mary  and  Caroline," 
with  cross  remainders  in  the  event  of  any  of  them  dying  without  issue, 
and  in  the  event  of  all  dying  without  issue,  to  be  divided  amongst  all  his 
children.  He  then  recites  that  he  had  already  provided  for  his  illegitimate 
children  by  conveyances  of  record  in  the  Clerli's  office,  to  the  extent 
which  the  law  allowed,  and  confirms  the  said  conveyances,  and  proceeds  : 
"It  is  my  wish  that  ray  wife,  Mary,  and  my  several  children  by  her, 
remain  on  my  plantation,  under  the  direction  of  my  executors,  until  my 
crops  be  housed  and  a  place  comfortably  and  suitably  prepared  for  them 
ou  one  of  my  upper  places,  at  the  expense  of  my  estate ;  and  that  Silla 
and  all  the  rest  of  the  family,  with  old  Jack,  old  Phebe  and  old  Flora, 
remain  on  the  place  where  my  family  shall  live  ;  and  that  the  said  old 
negroes  be  treated  humanely  by  my  executors  during  their  lives,  but  more 
particularly  in  old  age.  The  remainder  of  my  slaves  to  be  hired  out 
annually  by  my  executors,  and  my  mills  I  wish  rented  for  a  term  not  less 
than  ten  years,  but  the  rent  money  to  be  annually  paid  my  executors. 
My  executors  are  to  allow  my  wife,  during  her  natural  life  or  widowhood, 
household  *and  kitchen  furniture  and  farming  utensils,  horses,  and  r+^oft 
a  competency  of  stock,  so  as  to  afford  her  and  my  children  with  L 
her,  a  comfortable  and  reasonable  support;  and  the  several  children, 
Laney,  Satyra,  Solon,  Cambyses,  Mandanna,  Mary  and  Caroline,  as  they 
shall  marry  or  arrive  at  full  age,  shall  receive  from  my  executors  their 
several  allotments  as  before  stated  ;  and  should  my  wife,  Mary,  die  or 
marry,  the  portion  allotted  to  her  for  her  support  and  maintenance,  is  to 
be  sold  by  my  executors  on  at  least  one  year's  credit,  and  the  money 
arising  from  the  sale  to  be  put  to  interest  for  the  benefit  of  my  children 
as  above  stated."  By  a  codicil  which  appears  to  be  without  date,  he 
authorized  the  executor  to  lease  the  mills  annually  until  a  prospect  should 
appear  to  lease  them  for  the  term  mentioned  in  the  will. 

It  is  conceded  that  the  testator  was,  at  the  time  of  the  execution  of  the 
marriage  settlement,  seized  of  the  mills  and  plantation  mentioned  in  the 
clause  of  the  will  last  above  recited,  and  it  is  apparent  that  the  slaves 
specifically  named  in  the  will  are  not  included  in  the  settlement ;  and 
although  not  judicially  ascertained,  it  is  understood  that  he  d\e<j.  seized 
and  possessed  of  property  to  a  considerable  amount,  acquired  subse- 
quently to  the  execution  of  the  settlement. 

The  object  of  this  bill  is  to  obtain  partition  of  the  estate,  according  to 
the  rights  of  the  several  parties  under  the  settlement  and  the  will.  There 
is  no  claim  interposed  on  the  part  of  the  children  of  the  first  marriage, 
nor  do  the  illegitimate  children  claim  more  than  the  fourth  part  of  the 
real  and  personal  estate  whereof  the  testator  was  seized  and  possessed  at 
the  time  of  the  execution  of  the  settlement,  including  the  advancements 
which  he  had  made  to  them  respectively,  and  about  which  there  is  no 
controversy ;  but  between  the  widow,  Mary,  and  the  three  younger 
children,  Mandanna,  Mary  and  Caroline,  the  questions  arise — 

1.  Whether  by  the  terms  of  the  marriage  settlement,  the  testator  re- 
served to  himself  the  power  of  revoking  the  power  of  appointment 
granted  to  his  intended  wife,  as  to  the  remaining  two-thirds  of  his  estate, 
and  to  declare  other  uses  : 


372  SOUTH   CAROLINA   EQUITY   REPORTS.  [*486 

2.  If  he  did,  whether  the  will  can  operate  as  a  revocation  of  the  power 
and  a  declaration  of  uses  : 

3.  If  the  power  of  revocation  was  not  reserved  or  not  executed,  what 
estate  did  the  intended  wife  take  in  the  remainino;  two-thirds  ? 

The  Chancellor  who  presided  in  the  Circuit  Court  was  pleased  to 
*m'7l  *^clJiido6  ^"f^  decree,  that  by  the  terms  of  the  marriage  settlement, 
-"  the  power  of  appointment  granted  to  the  intended  wife,  was  re- 
served to  the  testator,  and  that  the  will  operated  as  a  revocation  and  a 
declaration  of  uses;  that  the  three  younger  children  took  the  remaining 
two-thirds  of  the  estate  under  the  residuary  clause  of  the  will — and 
ordered  partition  accordingly ;  and  the  questions  before  stated  have  been 
revived  here  on  an  appeal  from  that  decree. 

The  widow,  Mary  Hunter,  appeals  from  so  much  of  this  decree  as  de- 
termines that  the  will  is  an  execution  of  a  power  under  the  deed,  and 
moves  the  Court  of  Appeals  to  reverse  the  same,  or  so  modify  it  as  to 
decide  that  she  is  entitled  to  an  absolute  estate  in  the  two-thirds  referred 
to,  in  default  of  any  appointment  during  coverture  ;  or  at  least,  that  she 
still  has  a  right  to  aj>point  the  same  to  such  uses  as  she  may  choose, 
upon  the  grounds  following  : — 

1.  The  power  reserved  in  the  deed  to  the  donor  is  only  a  power  to 
control  an  apjiointment  by  the  wife,  and  is  dependent  for  its  exercise 
upon  the  fact  of  her  making  an  appointment. 

2.  The  will  is  not  an  execution  of  any  power  reserved  in  the  deed.  It 
does  not,  and  is  not  intended  to  revoke  any  part  of  the  appointment  or 
limitations  in  the  deed  ;  nor  does  it  declare  any  neiv  ^ises. 

3.  The  deed  and  will  can  stand  together — the  deed  operating  on  the 
property  mentioned  in  it,  and  the  will  on  other  property  of  the  testator. 

Wilkins,  for  appellant. 

Sims,  contra. 

Chancellor  Johnson,  [after  making  the  foregoing  statement  of  facts, 
and  of  the  (juestions  arising  out  of  them.] 

Whether  trusts  are  created  by  deed  or  will,  the  rules  of  interpretation 
are,  in  general,  the  same  in  the  Courts  both  of  law  and  equity.  Equity 
indeed  follows  the  rules  prescribed  by  the  Courts  of  law  in  regard  to  the 
creation  and  limitation  of  legal  estates. — 2  Mad.  Ch.  453,  and  the  cases 
cited  in  the  notes.  If  created  by  deed,  the  construction  is  determined  by 
the  rules  of  law  prescribed  for  the  interpretation  of  deeds,  all  of  which 
are  resolved  into  the  universal  rule,  that  whether  by  deed  or  will,  the  in- 
tention, to  be  ascertained  according  to  the  rules  of  law,  must  govern. 

In  the  solution  of  the  first  proposition,  we  are,  therefore,  led  to  inquire, 
what  was  the  intention  of  the  testator  in  reserving  to  himself,  in  the  deed, 
*48S1  ^^"^  power  of  "  revoking  any  limitation  or  *appointment  the  said 
-^  Mary  may  make,  and  of  declaring  the  uses  of  the  said  two-thirds 
parts  of  the  said  remainder,"  &c.  And  upon  recurring  to  the  deed  and 
examining  its  contents,  it  will  be  found  that'the  whole  estate,  real  and  per- 
sonal, is  conveyed  to  the  trustee,  George  Bruce,  in  trust  for  the  testator 
during  his  life,  and  after  his  death,  one-fourth  part  to  the  use  of  his  ille- 
gitimate children  in  fee  ;  one-third  part  of  the  remainder  to  his  intended 
wife  for  life,  remaiuder  to  the  children  of  the  marriage  in  fee ;  and  the  re- 


*488] 


COLUMBIA,    DECEMBER,    1836.  373 


maining  two-thirds  of  the  said  remainder  to  the  use  of  such  person  or 
pei'sons  as  liis  said  intended  wife  miu^ht  appoint,  and  in  default  of  such 
appointment,  to  the  use  of  the  said  intended  wife  in  fee.  Here  then  is  a. 
final  disposition  of  the  testator's  whole  interest  in  the  estate,  and  you 
look  in  vain  through  the  deed  for  any  reservation  of  power  which  author- 
izes hira  to  revoke,  change  or  alter  any  grant,  condition  or  limitation 
which  he  himself  has  made  in  that  deed.  The  power  reserved  is  in  terms 
that  of  "  revoking  any  limitation  or  appointment  that  the  said  Mary  Hunter 
may  make,"  and  of  declaring  other  uses,  and  could  not  therefore  be  ex- 
ercised until  the  case  provided  for  (an  appointment  by  the  intended  wife) 
had  been  made. 

The  question  may  be  simplified  and  better  understood,  by  supposing- 
that  instead  of  a  deed  like  this,  there  had  been  mutual  covenants  between 
the  parties — on  the  part  of  the  testator,  to  grant  the  estate  to  the  in- 
tended wife,  and  to  such  person  or  persons  as  she  may  appoint,  and  in 
default  of  such  appointment,  to  the  intended  wife  in  fee ;  and  on  the  part 
of  the  intended  wife  to  permit  the  testator  to  revoke  any  appointment 
she  might  make,  and  which  he  disapproved,  and  to  declare  other  uses. 
Can  it  be  maintained,  that  the  power  of  revocation  existed  independent 
of  the  previous  exercise  of  the  power  of  appointment  ?  or  that  under 
the  covenant  to  permit  the  testator  to  revoke  the  appointment,  he  might 
revoke  his  own  deed  ?  There  is  certainly  no  principle  or  rule  of  law  to 
authorize  such  a  perversion  of  the  obvious  intent :  and  yet  the  cases  are 
identical 

Conceding,  however,  that  the  power  of  revoking  the  deed  was  reserved 
to  the  testator,  independent  of  the  exercise  of  the  power  of  appointment 
by  the  wife,  still  I  think  it  very  clear  that  the  will  was  not  intended,  and 
cannot  operate  as  a  revocation  and  declaration  to  other  uses. 

In  the  rules  prescribed  for  the  construction  of  wills,  there  are 
*none  more  familiar,  than  that  the  intention  of  the  testator  to  be  r^,Qo 
collected  from  the  whole  will  must  govern,  and  that  if  possible  it  ^ 
must  be  so  construed  that  the  whole  must  stand  together,  and  effect  given 
to  every  provision  in  it.  Now,  that  the  testator  did  not  intend,  by  his 
will,  to  revoke  the  marriage  settlement,  is  conclusively  shown  by  his  re- 
cital and  positive  re-affirmation  of  it  in  the  will.  "  I  do  by  these  pres- 
ents confirm  a  marriage  deed  or  settlement,  dated,"  &c.,  is  the  language 
of  the  will ;  and  the  rule  is,  that  a  paper  writing  recited  or  referred  to  in 
a  will,  is  incorporated  with,  and  constitutes  a  part  of  the  will,  as  much 
so  as  if  the  testator  had  declared  his  will  in  the  terms  of  the  writing. — 
Habergham  v.  Vincent,  2  Ves.  228.  But  it  is  said  that  the  subsequent 
provisions  of  the  will  are  inconsistent  with  the  deed,  and  therefore  oper- 
ates as  a  revocation  of  the  deed  and  an  appointment  to  uses,  althou2:h 
there  is  no  express  declaration  of  an  intention  to  revoke.  Now,  it ''is 
true,  that  the  intention  to  revoke  need  not  be  expressed  in  the  will,  but 
the  intention  mutt  be  so  clear  that  no  other  reasonable  intent  can  be  im- 
puted to  the  will ;  nor  will  it  be  permitted  to  operate  as  a  revocation 
where  the  will  can  have  its  operation  without  it. — Bradish  v.  Gibbs,  3 
John.  Gh.  Rep.  551  :  nor  unless  it  is  demonstrable  that  the  testator  had 

the  power  in  his  contemplation,  and  intended  by  his  will  to  execute  it. 

Doe  V.  Roake,  2  Bing.  497  ;  9  Eng.  Com.  Law  Rep.  496.     And  it  re 
mains  to  be  seen,  whether  the  inconsistencies  between  the  deed  and  the 
YoL.  I.— 47 


374  SOUTH   CAROLINA    EQUITY   REPORTS.  [*489 

will,  are  so  irreconcilable  that  the  will  cannot  operate  consistently  with 
the  deed. 

It  is  before  noticed  that  the  will  contains  an  express  re-affirmation  of 
the  deed,  and  following  that,  is  the  general  residuary  clause  by  which  the 
testator  disposes  of  the  residue  and  remainder  of  his  estate  to  his  three 
younger  children  with  cross  remainders  over.  In  this  there  is  certainly 
nothing  inconsistent  with  the  deed.  It  operates  on  subsequently-acquired 
property,  if  there  is  any,  but  if  there  is  nothing  on  which  it  can  operate, 
it  does  not  revoke  the  provisions  of  the  deed.  Then  follows  the  clause 
last  above  recited,  by  which  the  testator  declares,  that  "  it  is  my  wish  that 
my  wife,  Mary,  and  my  several  children  by  her,  remain  on  my  plantation 
under  the  direction  of  my  executors,  until  my  crops  be  housed  and  a  suit- 
able and  comfortable  place  be  i)repared  for  them  on  one  of  my  upper 
plantations,"  &c.  ;  and  in  the  same  clause  goes  on  to  direct  that  his  ne- 
groes should  be  hired  out,  and  his  mills  rented,  (property  of  which  he 
^  -,  was  confessedly  seized  and  *po8sessed  at  the  time  of  the  execu- 
-J  tion  of  the  deed,)  and  to  make  other  dispositions,  inconsistent 
with  the  distribution  provided  for  in  the  deed,  at  the  time  of  his  death. 
It  will  be  observed,  however,  that  this  clause  begins  with,  "  it  is  my  wish," 
and  although  these  terms  are  frequently  held  to  import  a  direct  devise  or 
bequest,  or  to  create  a  trust,  (6  Cruise  Dig.  144-204,)  and  would  gener- 
ally so  operate  where  the  will  contained  nothing  inconsistent  with  it;  yet 
the  rule  is  not  so  imperative  as  to  compel  us  to  do  violence  to  the  gen- 
eral intent  in  giving  them  that  effect.  In  their  general  acceptation  they 
import  an  inclination  or  disposition  of  the  mind,  not  an  act  of  the  will ; 
and  it  is,  I  think,  very  apparent  that  the  testator  intended  them  so  to  be 
understood  here,  at  least  so  far  as  they  appear  to  be  inconsistent  with 
the  limitations  of  the  deed.  The  preceding  clauses,  it  will  be  recollected, 
contained  a  final  disposition  of  all  his  estate,  real  and  personal — the 
deed  of  the  property  described  in  it,  and  the  residuary  clause,  of  every 
thing  else  that  he  possessed;  and  if  this  last  clause  is  interpreted  a  di- 
rect bequest,  it  leads  to  that  inconsistency  and  repugnancy  which  the  rules 
of  construction  repudiate.  If  taken  in  their  ordinary  acceptation,  they 
are  merely  advisory,  and  render  the  will  thus  far  consistent — and  this  I 
take  to  be  their  true  interpretation.  This  last  clause,  however,  contains 
directions  to  the  executors  to  allow  the  wife,  during  her  natural  life  or 
widowhood,  household  and  kitchen  furniture,  horses  and  other  stock,  so 
as  to  afford  her  and  her  children  a  reasonable  and  comfortable  support, 
and  is  thus  far  consistent  with  the  deed,  and  may  well  stand  with  it  and 
supersede  the  preceding  residuary  clause. 

On  the  third  and  last  proposition,  there  is,  if  possible,  still  less  doubt. 
On  the  death  of  the  testator,  two-thirds  of  the  remainder  of  the  estate  is 
limited  by  the  terms  of  the  deed,  to  such  person  or  persons  as  the  wife, 
Mary,  should  by  deed  or  will  limit  and  appoint,  and  in  default  of  such 
appointment,  to  the  wife,  her  heirs,  executors,  admiuist^ators  and  assigns 
forever.  No  appointment  has  been  made,  and  the  question  is,  what  estate 
does  she  take  ? 

The  general  rule  is,  that  when  a  greater  and  a  less  estate  concentre  in 
the  same  person,  the  lesser  merges  in  the  greater;  or,  according  to  the 
Master  of  the  Rolls,  in  Philips  v.  Bridges,  2  P.  W.  126,  where  a  legal 
and  equitable  estate  unite  in  the  same  person,  there  is  nothing  on  which 


^490] 


COLUMBIA,    DECEMBER,    1S36,  375 


the  equitable  can  act ;  or  in  better  phrase,  it  no  longer  exists  So  in 
the  case  of  WagstaU"  v.  Wagstaff,  *2  P.  W.  259.  where  the  Lord  j-^  . 
Chancellor  sui)poses  the  case  of  a  trust  for  the  use  of  J.  S.,  his  L 
heirs  and  assigns,  or  to  such  person  or  persons  as  he  shall  appoint;  on 
which  he  observes,  that  the  last  word-;  (such  person  or  persons  as  he 
shall  appoint)  are  no  more  than  is  implied  before,  el  e.rpressio  ear  am 
quce  tacite  insiuit  nihil  operatur :  and  if  the  terras  of  this  limitation 
in  the  deed  are  transposed,  which  may  be  done  without  in  the  least 
impairing  the  intent,  we  have  the  precise  case.  Upon  the  death  nf  the 
testator,  Mary,  the  wife,  therefore  took  an  absolute  estate  in  the  re- 
maining two-thirds  of  the  estate  described  in  the  deed — Sugden  on 
Powers,  58. 

By  the  terms  of  the  deed  one-fourth  part  of  the  real  and  personal 
estate  is  limited  to  the  testator's  illegitimate  children,  taking  into  due 
estimate  such  real  and  personal  estate  by  him  given  to  tliera  or  any  of 
them.  The  power  of  selling,  disposing  of,  changing  or  exchanging,  of 
all  or  any  part  of  the  estate,  is  also  reserved  to  the  testator,  provided, 
however,  that  the  proceeds  thereof  should  be  subject  to  the  same  uses, 
limitations  and  conditions  as  in  the  original  deed.  It  is  probable,  too, 
that  the  testator  acquired  property  subsequently  to  the  exe(?ution  of  the 
deed,  or  had  other  property  at  the  time  on  which  the  residuary  clause  of 
the  will  would  operate ;  and  before  the  partition  prayed  for  can  be 
awarded,  it  will  be  necessary  to  ascertain  in  what  amount  the  illegitimate 
children  were  respectively  advanced  by  the  testator ;  what  property  con- 
tained in  the  deed,  if  any,  had  been  sold,  disposed  of,  exchanged  or  re- 
exchanged,  and  whether  the  proceeds  had  been  reinvested,  and  in  what ; 
and  whether  the  testator  was,  at  the  time  of  his  death,  seized  and  pos- 
sessed of  any,  and  what  other  real  and  personal  estate. 

It  is  therefore  ordered  and  decreed,  that  the  decree  of  the  Circuit 
Court  be  and  the  same  is  hereby  set  aside  and  reversed,  and  that  the  case 
be  referred  back  to  the  Commissioner  to  ascertain — 1.  In  what  the  tes- 
tator's illegitimate  children,  Laney  Andrews,  Solon  Andrews,  Satyra 
Andrews  and  Cambyses  Andrews,  had  been  advanced  by  him  in  his  life- 
time, and  its  value  :  2.  Whether  the  testator,  in  his  lifetime,  sold  or 
otherwise  disposed  of  the  whole  or  any  part  of  the  property  described  in 
the  said  deed,  and  whether  the  proceeds  have  been  reinvested,  and  in 
what;  or  whether  anything,  and  what,  has  been  substituted  in  its  place  : 
3.  Whether  the  testator  was,  at  the  time  of  his  death,  *seised  and  p^^^<^ 
possessed  of  any  other  real  or  personal  estate  than  that  described 
in  the  deed  and  not  specifically  disposed  of  by  the  will,  and  in  what  it 
consisted.  On  the  coming  in  of  this  report,  a  writ  of  partition  will  be 
ordered  for  the  partition  of  the  real  and  personal  estate,  as  well  as  that 
described  in  the  deed,  as  any  other  of  which  the  testator  may  have  died 
seized  and  .possessed,  not  specifically  disposed  of  by  the  will,  according 
to  the  principles  of  this  decree. 

Chancellor  Johnston,   and   Justices   O'Xeall,   Gantt,   Earle   and 
Butler,  concurred. 


376  SOUTH   CAROLINA   EQUITY   REPORTS.  [*492 


Joseph  Massey,  Administrator  of  George  Massey,  deceased,  vs.  Joseph 
D.  Massey,  Administrator  of  Benjamin  Massey,  deceased,  John  B. 
Cook,  and  Charlottte,  liis  Wife,  Henry  G.  Massey,  John  B.  Mas- 
sey, and  William  Massey,  his  Guardian,  James  H.  Gilmoke,  and 
Harriet  C,  his  Wife,  and  B.  S.  Massey,  lier  Guardian,  and  Ben- 
jamin Massey,  Guardian  of  Mary  E.  Massey,  (now  Mrs.  Haigood.) 

Executors  and  administrators  are  not  entitled  to  two  and  a-half  per  cent,  in  addition 
to  ten  per  cent  ,  for  making  interest.  By  the  Act  of  1789,  they  are  not  allowed 
ten  per  cent,  for  letting  out  to  interest  and  receiving  in  again,  nor  ten  percent  for 
making  interest,  but  two  and  a-half  for  letting  out,  and  two  and  a-half  for  taking 
in,  until  the  commissions  reach  ten  per  centum,  which  is  the  maximum.  [*4U.5] 

On  a  bill  by  an  administrator  against  a  distributee  and  her  guardian  to  have  money 
refunded  which  was  paid  by  mistake  to  the  guardian  more  than  four  years  before 
the  filing  of  the  bill,  but  paid  over  by  him  to  the  ward  within  tliat  time,  it  was 
held,  that  the  ward  might  protect  lierself  by  the  statute  of  limitations,' although 
not  pleaded  by  the  guardian,  especially  a?;  the  guardian  had  paid  over  all  the 
funds  received  before  notice  of  the  mistake  which  discharged  him  from  liability. 
[*490] 

Guardian  not  liable  for  money  paid  to  him  by  mistake,  after  he  had  paid  it  over  to 
his  ward  without  notice.  [*49t3] 

An  administrator  who  is  charged  with  interest  on  an  annual  balances,  shall  not  be 
charged  with  interest  on  the  interest  he  has  made  and  returned,  the  party  charg- 
ing must  elect  between  the  methods  of  stating  the  accounts.  [*497] 

George  Massey  died  intestate,  and  the  plaintifiT,  Joseph  Massey,  ad- 
ministered on  his  estate.  The  intestate,  George  Massey,  left  a  widow 
and  seven  children.  By  his  first  wife  he  left  the  following  cliildren  : 
Joseph  D.  Massey,  Charlotte  Massey,  (now  Mrs.  Cook,)  Henry  G.  Mas- 
sey and  Benjamin  Massey;  and  by  his  last  wife,  the  following  :  John  B. 
Massey,  (and  William  Massey  is  now  his  guardian,)  Harriet  C.  Massey, 
(now  Mrs.  Gilmore,  and  Benjamin  S.  Massey  was  her  guardian,)  and 
Mary  C.  Massey,  (now  Mrs.  Haigood,  Benjamin  Massey  was  her  guar- 
dian.) In  1819,  about  a  year  after  George  Massey's  death,  his  son  Ben- 
jamin died  unmarried  and  intestate.  Joseph  Massey,  the  plaintiff,  having 
sold  the  property  of  his  intestate  and  collected  the  debts,  and  having  also 
made  regular  annual  returns  of  his  accounts,  in  1827  procured  an  order 
from  the  Ordinary,  for  partition  of  the  estate  amongst  the  distributees  ; 
and  by  the  instructions  of  the  Ordinary,  and  contrary  to  his  own  impres- 
sions, after  paying  the  widow  the  one-third  of  the  estate,  he  paid  over 
the  remainder,  including  the  share  of  the  deceased  child,  Benjamin,  to 
the  six  surviving  children,  in  equal  shares. 

*4931  *^^  1832,  Joseph  D.  Massey,  a  brother  of  the  whole  blood  to 
the  deceased,  Benjamin,  administered  on  his  estate,  cited  the 
plaintiff  before  the  Ordinary,  and  obtained  a  decree  against  him  for 
$1316  03,  the  share  of  Benjamin,  being  the  one-seventh  of  two-thirds  of 
his  father's  estate  ;  one-half  of  which  the  plaintiff  had  properly  paid  to 
the  brothers  and  sister  of  the  whole  blood,  and  the  other  half  improperly 
to  the  brothers  and  sisters  of  the  half  blood.  Joseph  D.  Massey,  as  the 
administrator  of  Benjamin,  brought  his  action  at  law  against  the  plaintiff 
on  the  administration  bond,  and  obtained  judgment,  predicated  on  the 
said  decree,  for  the  full  amount  thereof. 

The  bill  was  filed  in  June,  1833,  to  enjoin  the  judgment  at  law,  to 


*493]  COLUMBIA,   DECEMBER,    lb36.  377 

obtain  credit  thereon  for  the  amounts  already  paid  by  the  plaintiff  to  the 
brothers  and  sister  of  the  whole  blood  of  the  said  Benjamin,  and  which 
they  were  legally  entitled  to  ;  and  to  require  the  brothers  and  sisters  of. 
the  half  blood,  and  their  respective  guardians,  to  refund  the  sums  paid 
thera  on  the  mistaken  distribution  of  the  estate  of  Benjamin. 

James  H.  Gilmore  and  wife  pleaded  the  statute  of  limitations.  The 
payment  was  made  by  the  plaintiff  to  B.  S.  Massey,  Mrs.  Gilmore's 
guardian,  in  1827 ;  and  in  1831  he  paid  over  the  funds  and  settled  in  full 
for  his  guardianship,  without  having  notice  of  the  plaintiff's  claim.  The 
guardian  pleaded  this  in  discharge  of  his  liability. 

The  cause  came  to  a  hearing  before  Chancellor  De  Saussure,  at  York, 
June,  1834. 

His  Honor  overruled  the  plea  of  the  statute  of  limitations,  and  ordered, 
"That  it  be  referred  to  the  Commissioner  to  examine  and  report  what 
proportion  was  overpaid  to  each  of  the  younger  children,  (those  of  the 
half  blood,)  and  how  much  was  underpaid  to  the  elder  children,  (those 
of  the  whole  blood,)  of  the  estate  of  Benjamin  Massey.  It  is  fui'ther 
ordered,  that  the  injunction  previously  granted  by  the  Commissioner,  be 
continued  till  the  coming  in  of  the  report  and  the  decision  thereon." 

In  pursuance  of  this  decree,  the  Commissioner  held  a  reference  and 
stated  the  accounts. 

On  the  reference,  the  plaintiff's  annual  returns  were  in  evidence,  in 
■which  he  made  regular  returns  of  the  interest  made  and  received  by  him. 
In  his  report,  the  Commissioner  charged  the  plaintiff  with  interest  on  the 
annual  balances,  including  interest  on  the  ^interest  returned  The  r^iqA 
principal  sale  bill  fell  due  on  the  28th  January,  1818;  the  Com-  '- 
missioner  adhei'ing  to  the  rule  that  moneys  received  should  not  bear 
interest  against  the  administrator  in  the  current  year,  charged  no  interest 
on  it  until  the  first  of  January  succeeding. 

The  cause  came  on  again  laefore  Chancellor  Johnston,  in  June,  1885, 
on  the  report,  and  exce])tions  by  both  parties. 

Of  the  several  exceptions,  it  is  only  necessary  to  notice  the  following  : — 

By  the  plaintiff. 

1.  That  the  plaintiff,  having  in  his  returns  returned  and  accounted  for 
the  whole  of  the  interest  made  and  received  by  him,  and  no  attempts 
having  been  made  to  falsify  them,  and  no  negligence  imputed,  he  should 
not  be  charged  with  interest  beyond  that  returned. 

2.  That  the  report  charges  the  plaintiff  with  interest  on  the  interest 
returned,  although  the  defendants  admit,  that  according  to  their  mode  of 
charging,  they  are  not  entitled  to  the  interest  itself  thus  returned ;  and 
consequently  cannot  be  allowed  interest  thereon. 

4.  That  the  plaintiff"  should  not  be  charged  with  interest  on  the  annual 
balances,  as  he  had  charged  himself  with  all  the  interest  he  made  and 
received. 

7.  That  commissions  are  not  allowed  to  plaintiff  in  the  report,  at  two 
and  a-half  per  cent,  on  the  interest  made,  in  addition  to  ten  per  cent,  for 
making  interest. 

By  the  defendants. 

2.  That  the  Commissioner,  in  his  report,  did  not  charge  the  plaintiff 
with  interest  on  $9133,  (the  sale  bill,)  from  28th  January,  1819,  because, 


378  SOUTH   CAROLINA   EQUITY    REPORTS.  [*494 

in  niaking  up  the  accounts  previously,  be  had  commenced  the  annual 
charges  on  the  first  of  January. 

So  much  only  of  the  decree  as  relates  to  these  exceptions  is  presented. 

JoHxsTOx,  Chancellor.  This  case  comes  up  on  a  report  of  the  Com- 
missioner, and  exceptions  thereto. 

The  first  exception  of  the  plaintiff  is,  I  think,  founded  in  misconcep- 
tion. The  interest  referred  to  in  the  plaintiff's  returns,  is  extra  interest 
made  by  renewing  notes.  But  charging  himself  with  this,  does  not 
exempt  him  from  ordinary  interest.  The  exception  is  overruled. 
*4Q'1  *-'■  ^^^®  '^^  ^^"^  endeavored  to  find  out  the  practical  application 
-^  of  the  plaintiff's  second  exception  :  as  I  cannot,  I  must  overrule  it. 

The  plaintiff's  fourth  exception  is  overruled  for  the  reasons  stated  in 
relation  to  the  first. 

Tlie  plaintiff"'s  seventh  exception  insists  that  he  is  entitled  to  two  and 
a-half  per  cent,  in  addition  to  ten  per  cent,  allowed  administrators  for 
interest.  Taveau  v.  Ball,  1  M'Cord,  Cu.  Rep.  462,  seems  to  support 
this  construction  of  the  act.  But  it  appears  to  me  to  be  so  plain  an  inva- 
sion of  the  act,  that  I  will  give  the  Supreme  Court  another  opportunity 
to  consider  the  question.  By  the  act  it  is  provided, (a)  not  that  an  execu- 
tor shall  receive  ten  per  cent,  for  letting  out  to  interest  and  receiving  in 
again,  nor  ten  per  cent,  for  interest  he  shall  make  for  the  estate  ;  but  that 
he  shall  receive  two  and  a-half  for  letting  out,  and  two  and  a-half  for 
taking  in,  until  the  commission  reach  ten  per  cent,  on  the  interest  made, 
which  is  expressly  declared  to  be  the  maximum.  In  all  cases  of  short 
loans,  ten  per  cent,  on  the  interest  made  will  fall  short  of  five  per  cent, 
for  letting  out  and  taking  in  the  capital ;  and  therefore,  as  the  limit  is 
ten  per  cent  on  the  interest,  the  operation  of  the  act  is,  in  all  such  cases, 
the  same  as  if  ten  per  cent,  had  been  expressly  given  on  the  interest, 
instead  of  allowing  commissions  to  that  limit  on  the  capital.  The  case 
■would  be  very  different,  however,  on  a  loan  for  twenty  years  secured  by 
bond  ;  then,  only  five  per  cent,  on  the  capital  would  be  the  commissions — 
falling  far  short  of  ten  per  cent,  on  the  interest.  The  exception  to  the 
report  on  this  point,  is  overruled. 

The  defendants'  second  exception  is  overruled.  Harper  v.  Ardis,  2 
Hill,  560,  is  against  it,  and  governs  me,  although  I  dissent  from  it. 

The  plaintiff  appealed  from  the  decision  of  Chancellor  Johnston,  in 
overruling  the  exceptions  on  his  part, 

(a)  The  29th  Section  or  the  Act  of  1789  (P  L.  49-5)  is  as  follows:  "  All  and  every 
executor  or  adinitiistrator  shall  for  his,  her,  or  their  care,  trouble  and  attendance  in 
the  execution  of  their  several  duties,  take,  receive  or  retain,  in  his,  her,  or  their 
hands,  a  sum  not  esceeding  the  sum  of  fifty  shillings  for  every  one  hundred  pounds 
■which  he,  she  or  they  shall  receive,  and  the  sum  of  fifty  shillings  for  every  one  hun- 
dred pounds  which  he,  she  or  they  shall  pay  away,  in  credits,  debts,  legacies  or  other- 
■wise,  during  the  course  of  their  or  either  of  their  managements  or  administrations, 
and  so  in  proportion  for  any  sum  or  sums  less  than  one  hundred  pounds.  Provided, 
that  no  executor  or  administrator  shall  for  his.  her  or  their  trouble  in  letting  out 
any  moneys  upon  interest,  ami  again  receiving  the  same,  be  entitled  to  take  or  retain 
any  sum  exceeding  twenty  shillings  for  every  ten  pounds,  for  all  sums  arising  by 
moneys  let  out  to  interest,  and  in  like  proportion  for  a  larger  or  lesser  sum  ;  nor 
shall  any  executors  or  administrators  who  may  be  creditors  of  any  testator  or  intes- 
tate, or  to  whom  any  sum  of  money  or  other  estate  may  be  bequeathed,  be  entitled 
to  any  commissions  for  paying  or  retaining  to  themselves,  any  such  debts  or  legacies 


*495]  COLUMBIA,   DECEMBER,    1836.  379 

The  defendants,  Gill  more  and  wife,  appealed  fi'om  the  decree  of  Chan- 
cellor 'De  Saussnre,  overrnling  their  plea  of  the  statute  of  limita- 
tions ;*  and  all  the  defendants  appealed  from  the  decree  of  Chan-  r;;;  <  qp 
cellor  Johnson,  overruling  their  second  exception.  And  the  ^ 
defendant,  B.  S.  Massey,  the  guardian  of  Mrs.  Giliuore,  appealed  and 
now  moved  that  the  bill  as  to  him  be  dismissed,  on  the  ground  that  his 
plea  was  sustained. 

Rogers  and  Hill,  for  the  plaintiff. 

Mills  and  Witherspoon,  for  the  defendants. 

Chancellor  Johnston  delivered  the  opinion  of  the  Court. 

This  Court  is  of  opinion,  that  Jas.  H.  Gilm(3re  and  wife  are  entitled 
to  the  benefit  of  their  plea  of  the  act  of  limitations  The  money  now 
sought  to  be  recovered  from  them,  was  paid  over  to  Mrs.  Gilmore's  guar- 
dian in  182T  ;  and  the  bill  to  recover  it  back  was  not  filed  until  1833. 
The  relation  between  the  administrator  and  the  guardian  was  ter.uiuated 
by  the  payment  of  the  money.  Indeed,  with  respect  to  the  excess  over 
the  ward's  share,  that  relation  never  existed.  It  is  a  simple  case  of  money 
paid  by  mistake,  and  action  brought  after  the  lapse  of  four  years  to 
recover  it  back. 

It  is  argued  that  inasmuch  as  the  guardian  to  whom  the  plaintiff  paid 
the  money  does  not  plead  the  act,  and  therefore  the  plaintiff  can  recover 
it  from  him,  who  in  his  turn  can  go  over  to  his  ward  for  indemnity — that 
from  these  circumstances  it  follows,  that  the  ward  cannot  protect  her- 
self by  the  statute. 

If  the  plea  is  a  good  defence  for  the  guardian,  which  he  collusively 
neglects  to  make,  the  ward  is  not  bound.  So  it  was  decided  in  Peyton 
V.  Peyton,  (Charleston  MS.  cases,)  where  a  creditor  having  called  the 
administrator  and  distributees  before  the  Court,  it  was  held  that  although 
the  administrator  would  not  plead  the  act,  the  distributees  might  do  it 
for  him,  and  thus  protect  their  interests. 

But  there  is  another  answer.  Although  the  guardian  has  not  pleaded 
the  statute  of  limitations,  he  has  pleaded  and  proved  a  full  administra- 
tion, (by  settlement  with  his  ward,)  of  all  that  came  to  his  hands,  and 
this  before  notice  of  any  mistake.  This  discharges  him.  And  as,  by 
the  argument  to  which  I  have  alluded,  the  ward's  liability  to  the  adminis- 
trator is  made  to  depend  on  the  previous  liability  of  the  guardian,  it  fol- 
lows that  there  can  be  no  recovery  here  against  the  ward. 

The  bill  must  therefore  be  dismissed  as  to  Gilmore  and  wife  ;  but  with- 
out costs. 

*The  bill  must  also  be  dismissed  as  to  Mrs.  Gilmore's  guardian  ;   r*^g>j 
he  having  sustained  his  plea  of  having  paid  over  the  assets  before 
notice  from  the  plaintiff. 

With  respect  to  the  accounts,  I  am  directed  to  say  that  the  Court  is, 
except  in  one  or  two  particulars,  satisfied  with  the  circuit  decision  on 
the  exceptions. 

It  is  their  opinion  that  if  the  defendants  charge  the  administrator  of 
George  Massey  according  to  the  ordinary  rule,  with  interest  on  the 
annual  balances,  he  should  not  be  charged  with  interest  on  the  interest 
returned  by  him.     The  defendants  must  elect  between  the  two  methods 


380  .      SOUTH    CAROLINA   EQUITY    REPORTS.  [*497 

of  stating  the  accounts.  If  they  choose  to  charge  the  interest  returned, 
that  will  dispose  of  the  exception  relating  to  the  sale  bill.  If  they  choose 
to  charge  by  the  ordinary  rule,  the  question  whether  the  interest  on  the 
sale  bill  shall  be  charged  as  contended  for,  will  arise.  That  question  is 
now  pending  before  the  Court  in  another  case  :  and  had  better  be  left 
open  in  this  until  decided  in  that,  or  until  the  report  comes  in  again.  It 
may  be,  that  the  defendants'  election  may  render  it  unnecessary  to  decide 
it  in  this  case. 

Let  the  circuit  decrees  be  modified  according  to  the  foregoing  opinion  ; 
and  the  case  remanded  to  the  Circuit  Court. 

Chancellors   De    Saussure,    Johnson    and    Harper,    and    Justices 
O'Neall,  Richardson,  Evans  and  Butler,  concurred. 


n:AQQi  *  i^^^i^  ^ct  of  the  Legislature  was  passed  on  the  21st  day  of 

-I       December,  1836,  entitled   "  An  Act  to  organize  the  Courts  of 

this  State,"  which,  after  prescribing  the  times  and  places  of  holding 

the  Courts  of  Law  and  Equity,  provides,   amongst  other  things,   as 

follows  : 

Sec  5.  That  all  appeals  from  the  Courts  of  Law  shall  be  heard  and 
determined  in  a  Court  of  Appeals,  consisting  of  the  Law  Judges — and 
that  all  appeals  in  Equity  shall  be  heard  and  determined  in  a  Court  of 
Appeals,  consisting  of  the  Chancellors  :  That  the  said  Courts  shall  meet 
at  the  same  time,  and  be  held  as  follows  :  that  is  to  say  :  at  Charleston, 
on  the  first  Monday  in  February ;  and  at  Columbia,  on  the  first  Monday 
in  May,  and  fourth  Monday  in  iVovember. 

Sec.  6.  That  in  all  questions  of  Law,  as  distinguished  from  Equity, 
the  Court  of  Chancery  shall  follow  the  decision  of  the  Court  of  Law. 

Sec.  Y  That  upon  all  constitutional  questions  arising  out  of  the  Con- 
stitution of  this  State,  or  of  the  United  States,  an  appeal  shall  lie  to  the 
whole  of  the  Judges  assembled  to  hear  such  appeals  :  That  an  appeal 
shall  also  lie  to  the  whole  of  the  Judges  upon  all  questions  upon  which 
either  of  the  Courts  of  Appeal  shall  be  divided,  or  when  any  two  of  the 
Judges  of  the  Court  shall  require  that  a  cause  be  further  heard  by  all  the 
Judges. 

Sec.  8.  That  the  Judges  of  Law  and  Equity,  when  assembled  as  afore- 
said in  one  chamber,  shall  form  a  Court  for  the  correction  of  all  errors  in 
Law  or  Equity,  in  the  cases  that  may  be  heard  before  them  :  and  that  it 
shall  be  the  duty  of  the  Judges  to  make  all  proper  rules  and  regulations 
for  the  practice  of  the  said  Court  of  Errors,  and  for  the  mode  of  bringing 
causes  before  them. 


( 


CASES    IN    CHANCERY 

ARGUED  AND  DETERMINED  IN  THE 

COURT  OF  APPEALS  OF   SOUTH   CAROLINA. 

®IjarIestott — J'fbruarg,  183Y. 


CHANCELLORS   PRESENT. 

Hon.  henry  W.  DE  SAUSSURE,  President. 
Hon.  DAVID  JOHNSON, 
Hon.  WM.  HARPER, 
Hon.  J.  JOHNSTON. 


J.  B.  Thompson,  Administrator  de  bonis  non  of  Hance  M'Culloch, 
vs.  James  T.  Buckner. 

Bill  by  administrator  de  bonis  non  against  defendant  to  account  as  former  adminis- 
trator, his  administration  having  been  revoked.  There  were  but  two  distributees, 
of  whom  defendant's  wife  was  one :  he  had  paid  the  debts  and  obtained  an  assign- 
ment from  the  other  distributee.  Held,  that  the  validity  of  the  deed  of  assignment 
could  not  be  impeached  by  the  plaintiif.  If  obtained  by  fraud,  none  but  the 
distributee  or  his  representatives  could  impeach  it,  and  it  was  a  fraud  on  his 
creditors,  they  only  could  complain.  And  for  the  same  reason  the  will  of  the 
distributee  disposing  of  his  interest  in  the  estate,  was  rejected.  [*uOi)] 

And  a  decree  in  favor  of  defendant's  wife  for  alimony  settling  her  portion  of  her 
father's  estate  to  her  separate  use.  is  irrevelant  and  inadmissible.  The  adminis- 
trator de  bonis  non  cannot  call  defendant  to  account  for  her  benefit.  She  might 
enforce  her  own  decree.  [*50l] 

Nor  can  the  administrator  de  bonis  non  in  such  case  sustain  the  bill  on  account  of 
judgments  remaining  of  record  unsatisfied  ;  especially  where  from  lapse  of  time 
they  may  be  presumed  to  be  satisfied,  and  where  the  judgmeut  creditors  are  not 
parties  claiming  payment.  To  require  defendant  to  account  on  that  ground,  they 
should  come  in  and  swear  that  their  judgments  are  unsatisfied,  and  it  should 
appear  that  the  defendant  had  notice  of  their  demands  within  the  year;  after  that, 
■without  notice,  he  would  not  be  liable  as  administrator,  and  the  creditors  would 
be  left  to  their  remedy  against  the  distributees.  [*o01] 

Administration  ought  in  no  case  to  be  granted,  but  to  kindred  or  creditors,  or  on 
their  application,  and  where  there  ai-e  neither,  the  Ordinary  is  only  authorized  to 
grant  administration  ad  colligenda  bona.  [*503] 

Heard  at  Coosawhatchie,  February  Term,  1836,  before   Chancellor 
Harper,  who  delivered  the  following  decree  : — 

On  the  2d  of  August,  1816,  administration  was  granted  to  the  de- 
fendant, James  T.  Buckner,  of  the  estate  of  Hance  M'Culloch,  then  lately 


382  SOUTH    CAROLINA    EQUITY   REPORTS.  [*499 

deceased,  whose  estate  was  appraised  at  more  thn.n  $12,000.  Ho  con- 
tinued in  tlie  administration  until  tlie  —  of  July,  1821,  when  his  adminis- 
tration was  revoked  on  the  application  of  his  sureties.  In  1830,  adminis- 
tration de  bonis  non  of  Hance  M'CuUoch's  estate,  was  committed  to 
David  C.  Campbell,  who  renounced  in  the  same  year ;  and  in  December, 
1833,  administration  de  bonis  non  was  committed  to  the  plaintiff.  The 
*^om  ^^'^  ^^  ^^^  ^^^  account*  of  the  estate  of  Hance  M'CuUoch,  iu  the 
-■  hands  of  the  defendant. 

Defendant,  by  his  answer,  admits  the  facts  stated  with  regard  to  the 
grant  of  the  several  administrations,  and  the  revocation  of  his  own.  He 
states,  however,  that  he  paid  off  all  the  debts  of  the  intestate,  and 
accounted  before  the  Ordinary.  He  states  that  Hance  M'Culloch  left 
only  two  children,  or  distributees,  to  wit :  a  son  named  Thomas  B. 
M'Culloch,  and  a  daughter  named  Elizabeth,  who  was  the  defendant's 
wife  ;  that  on  the  4th  of  March,  1816,  the  said  Thomas  B.  M'CuUoch,  by 
deed,  assigned  to  the  defendant  all  his  interest  in  his  father's  estate. 
Defendant  claims  that  having  paid  off  all  the  debts,  and  being  himself 
entitled  to  the  whole  estate,  in  right  of  his  wife,  and  under  Thomas  B. 
M'Culloch,  deceased,  he  is  not  liable  to  account.  If  the  case  made  by 
the  answer  were  sustained,  there  could  be  no  doubt  that  he  would  be 
entitled  to  a  decree.  The  Court  would  not  do  such  a  thing  as  to  compel 
a  defendant  to  account  for  au  estate  which  he  would  be  forthwith  entitled 
to  receive  back. 

The  execution  of  the  deed  of  Thomas  B.  M'Culloch,  was  admitted,  but 
evidence  was  offered  to  show  it  to  be  fraudulent.  This  testimony  was 
objected  to  on  the  part  of  defendant,  and  the  objection  sustained  by  the 
Court.  The  transaction  was  a  final  administration  of  the  estate,  so  far 
as  Thomas  B.  M'Culloch  was  concerned.  If  it  was  a  fraud  on  his  credit- 
ors, the  deed  might  still  be  good,  as  between  the  parties,  and  none  but 
his  creditors  could  impeach  it.  If  it  were  obtained  by  a  fraud  practised 
on  Thomas  B.  M'Culloch  himself,  none  but  himself,  or  his  legal  repre- 
sentative, could  call  it  in  question.  He  is  understood  to  be  dead  ;  but 
suppose  he  were  living  and  did  not  think  proper  to  impugn  it,  could  the 
administrator  de  bonis  non  avoid  it  on  his  behalf  without  his  concur- 
rence ?  It  can  make  no  difference  that  he  is  dead  ;  his  legal  representa- 
tive stands  in  his  stead,  and  is  alone  competent  to  litigate  the  validity  of 
the  deed.  For  the  same  reason,  the  will  of  Thomas  B.  M'Culloch,  which 
was  said  to  dispose  of  this  property,  was  rejected  when  offered.  The 
executor  of  that  will,  if  au  executor  were  appointed,  or  if  not,  an  admin- 
istrator cum  testamento  annexo,  is  the  'only  proper  person  to  sue. 
Evidence  was  also  offered  of  proceedings  on  a  bill  in  equity  by  the  wife 
of  the  defendant  against  him  for  alimony,  and  a  decree  that  her  portion 
*50n  °^  ^^^  father's*  estate,  should  be  settled  upon  her,  to  her  sepa- 
•^  rate  use.  This  also  was  objected  to,  and  the  objection  sustained. 
The  object  of  the  present  suit  was  stated  to  be  for  her  benefit,  and  that 
she  might  be  satisfied  with  her  decree.  But  this  is  plainly  unnecessary 
and  contrary  to  principle.  If  any  other  distributee  had  obtained  a  decree, 
could  the  administrator  de  bonis  non  call  the  former  administrator  to 
account  for  the  benefit  of  that  distributee?  What  difference  does  it 
make  that  the  distributee  was  the  administrator's  wife  ?  If  the  decree 
was  that  defendant  should  settle  the  estate  on  her,  it  is  implied  that  he 


*501]  CHARLESTON",    FEBRUARY,    1S37.  383 

shall  account  first.    What  f'orl)ids  her  to  enforce  that  decree?    Or  if  tliere 
be  any  defect  in  the  directions  of  the  decree,  they  may  be  sup|)lied  l)y  pro- 
ceeding's to  have  it  carried  into  effect.     Tlien  eviilencc  was  olfered  to 
show  debts  existing-  against  tiie  estate  of  Ilaiice  M'Culloch,  on  account 
of  which  the  administrator  de  bonis  non  is  supposed  to  sue,     This  con- 
sisted of  certificates  from  the  clerk's  office  of  Colleton  and  Beaufort  Dis- 
tricts, of  judgments  against  Ilance  M'Culloch  himself,  and  against  the 
defendant  as  his  administrator,  standing  apparently  unsatisfied  on  the 
record.     It  was  objected  that  these  ought  to  be  regarded  as  satisfied 
from  lapse  of  time,  and  so  I  should  think.     The  latest  judgment  against 
Hance  M'Culloch,  was  near  twenty-two  years  before  the  filing  of  the  bill, 
and  the  latest  against  the  defendant  as  administrator,  near  nineteen  years, 
and  these  are  circumstances  to  corroborate  the  presumption.     There  are 
various  I'easons  M'hy  the  bill  could  not  be  sustained  on  the  score  of  the 
judgments,  but  a  conclusive  one  is,  that  the  judgment  creditors  are  not 
before  the  Court,  nor  claiming  anything  upon  them      If  they  were,  they 
would  be  required  to  make  affidavits  that  their  judgments  were  unsatisfied 
before  they  would  be  received.   The  plaiiititt'is  a  trustee  on  their  behalf.   lu 
the  case  of  Stoney  r.  Shultz,  decided  by  the  Court  of  Appeals  at  its  last 
sitting  at  Columbia,  the  assignee  of  an  insolvent  debtor,  when  creditors 
had  been  advertised  for,  objected  to  the  distribution  of  the  fund  among 
the  creditors  who  were  before  the  Court,  on  the  ground  of  such  judgments 
standing  apparently  unsatisfied  on  the  record.     The  Court  held,  that 
though  a  trustee  for  all  creditors,  it  was  not  his  duty  to  go  in  search  of 
creditors,  and  that  they  could  take  notice  of  no  creditors,  but  those  who 
had  presented  their  demands  duly  verified   by  affidavit.     By  parity  of 
reason,  if  the  estate  were  in  the  hands  of  the  plaintiff,  and  distributees 
were  suing  him,  he  could  not  claim  to  *retain  a  fund  to  meet  those  rH:5Q2 
judgments  ;  he  could  not  do  so  at  any  time  after  the  expiration  of  ^ 
the  year  and  day.     Creditors  who  had  not  within  that  time  rendered 
their  demands,  would  be  left  to  their  remedies  of  pursuing  the  estate  in 
the  hands  of  the  distributees.     Shall  he  be  permitted  to  recover  against 
defendant,  that  he  may  hold  the  fund,  upon  a  surmise  that  these  claims 
may  be  one  day  brought  forward  and  established  ? 

It  is  ordered  and  decreed  that  the  bill  be  dismissed  with  costs. 

The  plaintiif  appealed  on  the  following  grounds  : — 

1.  Because  the  administrator  of  Hance  M'Culloch  did  not  finish  and 
complete  his  duty  as  such — inasmuch  as  he  did  not  pay  the  debts  and 
cause  distribution  to  be  made,  but  held  the  estate  unadministered  until  the 
administration  was  revoked,  and  thereby  became  liable  to  account  to  the 
administrator  de  bonis  non. 

2.  Because  the  decree  of  the  Court  of  Equity  prevented  the  attaching 
of  the  marital  rights,  and  until  a  final  account,  the  possession  by  the 
administrator  of  M'Culloch,  was  not  sufficient  to  transfer  his  wife's  share. 

3.  Because  the  mere  allegation  of  a  conveyance  from  the  other  dis- 
tributee, was  not  a  sufficient  accounting  for  his  share. 

4.  Because  the  Chancellor,  instead  of  dismissing  the  bill,  should,  on 
bis  own  principles,  have  retained  the  bill  and  directed  that  the  legal 
representative  of  Thomas  B.  M'Culloch  and  the  judgment  creditors  of 
Hance  M'Culloch,  be  made  parties. 

5.  Because  there  was  no  proof  of  any  account  before  the  Ordinary ; 


384  SOUTH    CAROLINA   EQUITY   REPORTS.  [*502 

on  the  contrary,  his  accounts  show  a  large  inventory  and  only  some  par- 
tial payments,  and  no  final  account  was  proved  or  pretended. 

N.  B.  The  decree  is  mistaken  in  the  statement  that  the  execution  of 
the  deed  of  Thomas  B.  M'Culloch  was  admitted.  It  was  admitted  that 
such  a  deed  has  been  set  up  and  alleged,  and  evidence  was  to  be  intro- 
duced to  show  it  void. 

Hunt,  for  the  appellant. 

Bailey,  contra. 

Chancellor  Harper  delivered  the  opinion  of  the  Court. 

The  mistake  which  is  supposed  to  have  occurred  with  respect  to  tlie 
admission  of  the  fact  of  the  execution  of  Thomas  B.  M'CuIloch's  deed, 
ff  it  be  a  mistake,  is  one  which  cannot  be  corrected  now.  My  notes  of 
*pin^1  the  evidence  were  sent  with  the  decree,  and  *are  not  now- in  my 
-^  possession.  The  notes  were  before  me,  however,  when  the  decree 
was  drawn,  and  I  am  satisfied  that  I  must  have  so  taken  it  down,  and  so 
understood  it  at  the  time.  It  is  singular  that  evidence  should  have 
been  offered  to  show  the  deed  to  be  fraudulent  before  its  execution 
was  established. 

With  respect  to  the  debts  of  the  estate  of  Hance  M'Culloch,  which 
are  said  to  remain  unpaid,  I  may  remark,  in  addition  to  what  is  said  in 
the  decree,  that  the  existence  of  such  debts  is  not  alleged  by  the  bill,  and 
consequently  the  defendant  could  not  have  been  prepared  to  disprove 
them.  If,  after  the  expiration  of  the  year,  during  which  he  had  received 
no  notice  of  the  debts,  the  administrator  had  paid  over  the  estate  to  the 
distributees,  he  might  plead  that  he  had  fully  administered,  as  against 
creditors,  or  an  administrator  de  bonis  non.  Creditors  might  perhaps 
pursue  the  estate  in  the  hands  of  the  distrubtees ;  but  an  administrator 
de  bonis  non,  would  be  required  to  prove,  not  only  that  debts  existed, 
but  that  the  administrator  had  notice  of  them  within  the  year,  before  he 
could  require  an  account.  In  this  case,  that  has  been  done  which,  ac- 
cording to  the  view  I  have  taken,  is  equivalent  to  a  full  administration. 
If  the  creditors  themselves  might  pursue  the  estate  iu  the  hands  of  the 
defendant  or  his  wife,  yet  the  administrator  de  bonis  non,  even  if  he  has 
established  the  existence  of  the  debts,  has  certainly  not  shown  that  the 
defendant  had  notice  of  them  within  the  year. 

I  think  that  Ordinaries  ought  in  no  case  to  grant  administration,  un- 
less to  the  kindred  or  creditors,  or  upon  the  application  of  the  kindred 
or  creditors.  The  statutes  31  E.  3,  c.  11,  and  21  H.  8,  c.  5,  only  pro- 
vides for  the  granting  of  administration  to  the  kindred,  &c.,  according  to 
their  propinquity.  See  Toll.  Ex.  82,  83.  Administration  is  also  com- 
mitted to  creditors ;  but  when  there  are  neither  kindred  nor  creditors, 
the  Ordinary  is  only  authorized  to  grant  administration  ad  colligenda 
bona — for  the  sole  purpose  of  collecting  and  preserving  the  goods. — 
When  kindred  applies,  the  ordinary  must  have  evidence  that  they  are 
kindred,  entitled  to  the  administration.  And  when  creditors  apply,  they 
ought  to  verify  the  existence  of  their  demands,  not  only  by  the  produc- 
tion of  their  evidence  of  debt,  but  by  their  own  oaths.  In  this  case,  it 
is  plain  the  administration  was  not  granted  on  the  application  of  credi- 
tors.    It  is  probable  that  it  was  granted  on  the  application  of  the  de- 


*503]  CHARLESTON,    FEBRUARY,    1837.  385 

fendant's  wife.  But  as  to  her,  as  I  have  said,  even  if  she  were  otherwise 
*eii titled  to  it,  the  estate  has  beeu  fully  administered  by  the  decree  r^^cRn^ 
in  her  favor.  '- 

If  the  decree  in  favor  of  the  wife  is  to  have  no  validity  or  effect  what- 
ever, then  it  cannot  stand  in  the  way  of  the  husband's  marital  rights 
attaching.  If  it  is  to  have  any  validity  or  effect — if  it  be  an  authorita- 
tive determination  of  her  right  to  the  estate  derived  from  her  father,  then 
it  is  certain  that  it  may  be  enforced  and  carried  into  execution,  by  a 
proper  proceeding  on  her  part.  Directions  may  be  supi)li(3d,  if  they  are 
deficient,  and  an  account  had  if  an  account  be  needed.  I3iit  to  decree  an 
an  account  and  payment  of  the  estate  to  the  present  plaintiff,  would  be, 
in  effect,  to  decree  to  him  that  which  has  already  been  decreed  to  her. 

With  respect  to  the  suggestion  in  relation  to  making  additional  parties, 
it  may  be  observed,  that  if  the  plaintiff  had  any  rights,  to  the  decision  of 
which  those  parties  were  necessary,  such  a  course  would  be  proper.  But 
he  has  no  rights,  nor  any  standing  in  Court,  and  if  such  an  order  were 
made,  it  would  not  be  to  amend  the  bill,  but  to  make  a  new  case,  to 
which  he  would  be  an  improper  and  unnecessary  party. 

The  decree  is  affirmed. 

Johnston,  Chancellor.     I  do  not  concur. 


William.  E.  Perryclear,  v.  M.  Jacobs  and  James  Slowman. 

Before  marriage  J.  S.  executed  a  deed  to  the  plaintiff  as  trustee,  by  which  he  settled 
ou  his  intended  wife,  a  legacy  due  to  her.  The  deed  was  recorded  in  the  mesne 
conveyance  office,  but  not  in  that  of  Secretary  of  State.  Suit  had  beeu  brought 
before  marriage  for  the  legacy,  and  after  marriage  a  decree  obtained  in  the  wife's 
favor  and  the  funds  received  by  the  solicitor  employed  to  prosecute  the  suit,  who, 
at  the  instance  of  the  husband,  and  without  the  concurrence  of  the  trustee, 
accepted  an  order  in  favor  of  a  creditor  of  the  husband.  On  a  bill  by  the  tiustee 
to  declare  the  creditor's  claim  invalid,  and  to  have  the  settlement  enforced,  the 
Court  decreed  the  trust  fund  recovex'ed  ou  the  legacy,  to  be  paid  over  to  the 
trustee.  [*505] 

The  order  was  an  assignment  of  the  husband's  interest,  but  he  had  none,  having 
previously  parted  with  it  by  the  settlement,  which,  though  void,  for  want  of 
recording  as  to  creditors  who  could  reach  the  fund  without  the  aid  of  equity,  was 
good  between  the  parties.  [506] 

As  the -creditors  could  only  reach  the  wife's  choses  in  action  in  equity,  the  Court 
will,  on  his  application  to  obtain  the  fund,  make  a  settlement  on  the  wife,  or  one 
being  already  made  by  the  husband,  enforce  that.  [*507] 

The  husband  and  solicitor  could  not  by  their  act  change  the  rights  of  the  parties  ; 
and  the  acceptance  of  the  order  was  a  nullity.  [*5()8] 

The  wife  has  the  right  to  a  settlement  out  of  her  separate  property,  whether  the 
application  be  by  the  husband  or  his  assignees  to  obtain  the  possession,  and  an 
assignee  for  valuable  consideration  is  subject  to  the  same  equity  as  the  husband 
[*509] 

Creditors  of  the  husband  have  no  interest  in  the  wife's  expectancy  not  reduced  into 
possession,  and  if  they  trust  him  on  the  fdth  of  it,  it  is  iat  their  peril.  [*.J09] 

As  the  Court  may  compel  the  husband,  on  his  application  for  his  wife's  estate  to 
make  a  settlement,  so  he  may  of  his  own  accoi'd  make  one,  and  that  either  of  a 
part  or  the  whole  of  her  choses  ;  and  his  creditors  should  not  object.  [*510] 

In  equity  the  husband  may  make  an  assignment  of  his  wife's  choses  for  her  separate 
use  by  parol ;  and  although  a  deed  of  settlement  not  recorded  is  void  as  a  mar- 


386  SOUTH    CAROLINA    EQUITY    REPORTS.  [*504 

riage  settlement,  it  would  operate  as  an  assignment  of  his  interest,  and  put  the 
property  out  of  the  reach  of  his  creditors.  [*51()] 
The  recovery  being  for  the  wife's  separate  use,  the  marital  rights  did  not  attach. 
[*5K)] 

Heard  at  Coosawhatchie,  January  Term,  1835,  before   Chancellor  De 
Saussure,  who  delivered  the  following  decree  :  — 

The  bill  states,  that  previous  to  the  marriage  of  James  Slowraan  with 
Sarah  Oswald,  a  deed  of  settlement  was   executed,   by  which  a  certain 
claim,  which  she  had  as  one  of  the  legatees  of  George  Stevens,  was  con- 
veyed to  plaintiff,  as  trustee,  for  certain  uses  therein  set  forth.     That  the 
deed  of  settlement  was  recorded  in  the  office  of  the  Register  of  mesne 
conveyance  in  Beaufort  District,  but  omitted  to  be  recorded,  from  igno- 
rance of  the  law,  in  the  office  of  the  Secretary  of  State.     That  no  portion 
of  the  legacy  came  into  the  hands  of  the  plaintiff,   but  he  was  informed 
recently  i}y  the  solicitor  employed  before  the  marriage  to  recover  4,he  leg- 
acy from  the  estate  of  Stevens,  that  by  a  decree  of  this  Court,   a  certain 
.        -,   *sum  of  money  was  due  plaintiff,   as  trustee  of  Mrs.    Slowman. 
J  The  solicitor  also  informed  him,  that  he  had  accepted  an  order  of 
James  Slowman,  in  favor  of  Myer  Jacobs,  made  after  the  marriage,   and 
that  he  must  retain  that  amount  in  his  hands  ;  and  that  other  creditors  of 
James  Slowman  would  seek  to  make  the  legacy  to  Mrs.  Slowman,  when 
reduced  to  possession,  liable  for  the  debts  of  said  Slowman.     The  plain- 
tiff states,  that  as  the  legacy  has  never  been  in  the  possession   of  said 
Slowman,  it  may  be  considered  as  impounded  in  this  Court,  being  in  the 
hands  of  the  solicitor,  who  recovered  the  same  for  Mrs.    Slowman,  from 
the  estate  of  Stevens ;  and  that  the  assignment  of  the  husband,  ought 
not  to  prevail  against  the  equity  of  the  wife,  more  especially  as  the  hus- 
band had  previously  executed  the  deed,  by  which  the  right  to  the  legacy 
was  conveyed  to  plaintiff,  as  trustee  for  Mrs.    Slowman.     That  plaintiff 
had  refused  to  acknowledge  the  right  of  the  said  Myer  Jacobs,  to  be  paid 
out  of  the  fund  now  in  the  hands  of  plaintiff's  solicitor  in  the  suit  under 
which  the  legacy  was  recovered.     That  as  the  marriage   deed  was  re- 
corded in  the  office  of  the  district  in  which  all  the  parties  resided,  and 
had  been  drawn  up  by  the  gentleman  at  the  bar,  then  and  now  the  attor- 
ney, solicitor  and  agent  of  the  said  Myer  Jacobs,  as  well  as  of  the  said 
Sarah  Slowman,  this  ought  to  be  considered  as  notice  of  the  existence  of 
the  deed  of  settlement.     The  bill,  therefore,  prays  that  the  claim  of  Myer 
Jacobs  may  be  declared  invalid,  and  that  James   Slowman  may  be  or- 
dered to  make  a  sufficient  settlement  of  his  wife's  property. 

The  answer  of  James  Slowman,  admits  the  execution  of  the  marriage 
settlement,  and  that  he  subsequently  drew  the  order  on  the  solicitor,  who 
had  recovered  the  legacy  for  Mrs.  Slowraan,  in  favor  of  Myer  Jacobs,  as 
before  stated.  That  he  did  not  mean  thereby  to  defraud  his  wife  and 
children,  or  to  defeat  their  rights  under  the  deed,  but  that  having  been 
informed  that  the  deed  was  void,  for  want  of  being  fully  recorded  accord- 
ing to  law,  he  thought  himself  at  liberty  to  draw  the  order  he  did,  on  the 
fund  in  favor  of  one  of  his  creditors.  That  he  is  willing  to  do  justice  to 
his  creditors  as  far  as  in  his  power,  and  also  to  his  family,  as  the  Court 
may  order  and  direct. 

The  answer  of  Myer  Jacobs  insists  upon  his  rights  under  the  order 
drawn  by  James  Slowman  on  the  solicitor,  who  recovered  the  legacy  in 


*505] 


CHARLESTON,    FEBRUARY,    IS'Sl .  387 


question,  wliich  was  accepted  by  him.     The  answer  *clenies  any  r^rcc 
notice  of  the  deed  of  settlement,   and  insists  that  the  same  not  L 
being  duly  recorded,  is  void  as  to  creditors. 

Tlie  facts  appear  to  be,  as  stated  in  the  proceedings,  and  u[)0!i  tliem 
the  question  arises,  whether  the  order  of  the  husljand,  in  favor  of  Myer 
Jacobs,  to  pay  a  debt  of  his  own,  on  the  solicitor  who  had  recovered  the 
legacy  to  JNlrs.  Slowman  and  held  the  fund  in  his  hands,  and  which  order 
the  solicitor  has  accepted,  is  such  an  assignment  of  the  wife's  equity,  as 
will  transfer  to  the  said  creditor  a  right  to  be  paid  out  of  the  fund,  to  the 
prejudice  of  the  wife  and  children.  The  uses  and  trusts  expressed  in  the 
marriage  settlement  were,  that  the  trustee  should  permit  the  said  Sarah 
Oswald,  and  her  assigns,  to  receive  and  take  the  rents,  wages,  profits  and 
emoluments,  and  increase  of  the  said  legacy,  to  her  sole  and  separate  use 
and  Ijenelit,  during  her  natural  life,  free  from  the  control,  debts  or  en- 
gagements of  her  intended  husband,  James  Slowman,  and  her  receipt  to 
be  a  sufficient  discharge  to  said  trustee  ;  and  upon  her  death  in  the  life- 
time of  the  said  James  Slowman,  then  the  trustee  should  assigu  and 
transfer  tlie  said  legacy  or  bequest,  and  the  proceeds  from  it,  to  and 
among  the  children  of  the  said  Sarah  Slowman. 

The  question,  as  above  stated,  is  whether  under  the  circumstances  of 
the  case,  the  order  drawn  by  James  Slowman,  the  husband  of  said  Sarah, 
the  legatee,  on  the  solicitor  who  recovered  the  legacy  from  the  estate  of 
Stevens,  is  such  an  assignment  of  his  interests  iu  the  legacy  bequeathed 
to  his  wife,  as  vested  an  interest  in  the  assignee,  to  the  prejudice  and 
rights  of  the  wife  and  children,  under  the  deed  of  marriage  settlement  ? 
This  order  was  an  informal  mode  of  assigning  any  interests  which  the 
husband  might  have  in  the  legacy,  but  as  there  is  no  particular  mode 
prescribed  by  law,  for  ti'ansferring  such  an  interest,  I  am  of  opinion  that 
it  may  be  considered  well  enough  to  carry  whatever  interest  the  husband 
had  in  the  legacy,  to  the  extent  of  the  order.  The  question  then  arises, 
what  interest  had  the  husband  in  the  said  legacy  ?  If  there  had  been  no 
marriage  settlement,  the  husband  would  have  had  such  an  interest  therein, 
as  to  have  been  able  to  assign  the  same,  and  if  the  assignee  could  have 
obtained  the  interest  assigned,  without  coming  to  this  Court  for  its  aid 
in  procuring  the  fund,  he  would  be  able  to  hold  it.  But  if  he  were 
oblisred  to  come  to  this  Court  for  its  aid,  that  would  not  be  furnished 
without  a  Y)i'oper  provision  for  the  wife  out  of  the  fund.  In  this  case,  how- 
ever, *there  was  a  marriage  settlement,  duly  executed  before  the  rt.e.f\*7 
marriage,  by  which  the  husband  had  joined  in  conveying  to  a  '- 
trustee,  this  legacy  then  unrecovered,  to  the  sole  and  separate  use  of  the 
wife,  free  from  his  control  of  debts,  and  after  her  death  to  her  lawful 
children.  By  that  instrument  the  husband  parted  with  all  the  rights  and 
interests  which  he  might  have  acquired  by  the  marriage,  and  of  course 
the  right  of  transferring  or  assigning  any  iu  the  legacy  in  question,  to  his 
creditors.  It  is,  however,  argued,  that  the  marriage  settlement,  not  hav- 
ing been  recorded,  according  to  the  ])rovisions  of  the  statute,  the  same  is 
void,  and  that  the  creditors  of  the  husband  have  a  right  to  avail  them- 
selves of  the  defect,  and  obtain  payment  of  the  d(!l)ts  due  to  them  out  of 
the  fund.  There  is  no  doubt,  that  the  non-recording  the  instrument  ac- 
cording to  law,  avoided  the  same  as  to  creditors,  and  they  are  at  liberty 
to  enforce  their  legal  processes  as  far  as  the  same  could  be  used.     But  a 


388  SOUTH   CAROLINA   EQUITY   REPORTS.  [*507 

power  to  enforce  their  legal  remedies  would  not  enable  them  to  touch  a 
legacy,  or  money,  in  the  hands  of  an  attorney  or  solicitor;  an  execution 
could  not  be  levied  on  it.  Then  it  can  be  reached  only  by  application  to 
this  Court,  on  the  equitable  rights  of  the  parties.  Now,  if  we  examine 
these,  it  appears  that  the  husband  had  parted  with  all  the  interests  he 
might  acquire  to  the  legacy  in  question,  by  executing  a  marriage  settle- 
ment to  a  trustee  for  the  benefit  of  his  wife  and  children.  That  instru- 
ment was  void  as  to  creditors  for  want  of  due  recording  ;  but  it  was  valid 
as  between  the  parties.  The  husband  was  bound  by  it,  and  however  his 
creditors  might  lay  hold  of  the  fund,  if  they  could  get  at  it  by  legal  pro- 
cesses, the  husband  could  do  no  act  to  affect  it.  He  was  not  at  liberty 
to  assign  it  to  his  creditors  or  any  body  else,  and  they  could  not,  by  the 
order  of  the  husband,  who  had  parted  with  all  his  rights  to  the  trustee, 
acquire  any  power  over  this  equity.  If  the  solicitor,  who  had  been  em- 
ployed to  recover  the  legacy  for  the  trustee  of  Mrs.  Slowraan,  had  not 
accepted  the  order  of  the  husband,  to  be  paid  out  of  the  fund  in  his 
hands,  the  creditor,  Mr.  Myer  Jacobs,  must  have  come  here  to  obtain  the 
effect  of  his  order,  and  his  equity  would  have  been  resisted  by  the  equity 
of  the  wife,  which  existed  independent  of  the  settlement.  But  the  ac- 
ceptance of  the  order  by  the  solicitor,  has  in  some  degree  changed  the 
situation  of  the  parties,  and  obliged  the  trustee  to  come  here  for  protec- 
tion. The  question  arises,  was  the  solicitor  at  liberty  to  do  so  ?  For 
*Finsi  ^^^®  purpose  *of  recovering  the  legacy  he  was  the  agent  of  the 
-J  trustee  for  the  benefit  of  the  cestui  que  use,  and  when  recovered, 
he  had  no  authority  over  the  fund  It  was  at  the  disposal  of  the  trustee, 
aud  should  have  been  paid  over  to  him  who  was  the  real  employer.  He 
had  no  authority  to  change  the  situation  of  the  parties  by  any  act  of  his, 
or  his  own  position  as  the  solicitor  of  the  trust  estate,  for  that  of  a  stake- 
holder. It  was  for  the  Court  to  decide  what  effects  flowed  from  the  non- 
recording  the  marriage  settlement.  The  act  of  acceptance  by  the  solici- 
or,  was,  therefore,  a  nullity,  done  no  doubt  with  good  intentions,  and  to 
promote,  as  he  thought,  the  purposes  of  justice.  But  he  transcended  his 
powers,  for  it  is  understood  he  had  no  authority  from  the  trustee  to  ac- 
cept orders  or  make  payments  to  the  husband's  creditors,  out  of  the  trust 
fund  in  question.  The  acceptance,  then,  being  put  out  of  the  way,  the 
plaintiff  is  entitled  to  a  decree,  directing  that  the  fund  be  paid  over  to 
the  trustee.  Should  the  creditor,  however,  be  disposed  to  persevere  in 
his  claim,  he  may  still,  perhaps,  file  his  bill,  and  seek  his  redress  against 
the  trustee  and  the  trust  fund. 

It  is  ordered  that  the  trust  fund  recovered  on  the  legacy  be  paid  over 
to  the  trustee. 

Defendant,  Jacobs,  appealed  on  the  following  grounds  : 

1.  Because  Slowman's  order  on  his  solicitor,  in  favor  of  Jacobs,  for 
four  hundred  and  eighty-five  dollars,  was  a  legal  and  valid  assignment  of 
so  much  of  his  wife's  legacy,  and  being  for  valuable  consideration,  gave 
the  assignee  a  claim  paramount  to  the  rights  of  the  trustee  under  the 
unrecorded  deed  of  marriage  settlement. 

2.  Because  the  assignee  is  a  bona  fide  and  fair  creditor,  as  well  as  a 
purchaser  for  valuable  consideration,  without  notice,  and  is,  by  the  prin- 
ciples of  equity,  as  well  as  by  the  positive  enactments  of  the  Legislature, 
entitled  to  payment  from  the  property  covered  by  the  marriage  settlements. 


*508]  CHARLESTON,    FEBRUARY,    1837.  389 

3.  Because,  if  the  defendant,  Jacobs,  can  procure  redress,  as  the  Chan- 
cellor intimates  in  his  decree,  "by  filinc:  a  bill  ajjrainst  the  trustee,  and  Ihc 
trust  fund,"  the  decree  in  this  case  should  have  been  in  his  favor,  inasinucli 
as  all  the  parties  to  be  affected  by  such  a  decree,  as  well  as  the  fund  itself, 
were  in  Court. 

4.  Because  there  is  nothing  in  the  showing  of  the  plaintiff,  to  give  juris- 
diction of  his  case  to  a  Court  of  Equity,  as  against  the  defendant,  Jacobs. 

*5.  Because  the  decree  is  in  other  respects  contrary  to  the  prin-  r*rf^o 
ciples  of  equity,  as  is  settled  by  decided  cases,  and  contrary  to  ^ 
the  uncontradicted  facts  in  the  defendant's  (Jacob's)  answer,  and  ought 
to  be  reversed. 

TreviUe,  for  appellant. 

A.  31.  Smith,  contra. 

Chancellor  Harper  delivered  the  opinion  of  the  Court. 

The  right  of  the  wife  to  a  settlement  out  of  her  separate  property, 
which  is  subject  to  the  jurisdiction  of  this  Court,  is  too  well  settled  to  be 
questioned.  As  is  said  by  Chancellor  Kent,  in  Kenney  v.  Udal,  5  John. 
Ch.  Rep.  464,  "the  wife's  equity  attaches  upon  her  personal  property, 
when  it  is  subject  to  the  jurisdiction  of  this  Court  and  is  the  object  of  the 
suit,  into  whatsoever  hands  it  may  have  come,  or  in  whatever  manner  it 
niayhave  been  transferred.  The  same  rule  applies,  whether  the  applica- 
tion be  by  the  husband,  or  his  representatives  or  assignees,  to  obtain  pos- 
session of  the  property,  or  whether  it  be  by  the  wife  or  her  trustee,  or  by 
any  other  person  partaking  of  that  character,  praying  for  a  provision  out 
of  that  property."  An  assignee,  even  for  a  valuable  consideration,  stands 
in  the  same  situation  with  the  husband,  and  is  subject  to  the  same  equity, 
when  he  comes  to  seek  for  the  wife's  property.  Creditors  of  the  husband 
have  no  interest  whatever  in  the  wife's  expectancy,  not  yet  reduced  into 
possession,  and  if  they  think  proper  to  credit  him  on  the  faith  of  it,  it  is 
at  their  peril.  The  case  of  Elibank  v.  Montolieu,  5  Yes.  737,  is  one  in 
which  the  bill  of  the  wife  was  sustained  against  the  husband  and  the 
administrator  of  an  estate  of  which  she  was  entitled  to  a  distributive 
share,  and  who  was  also  a  creditor  of  the  husband,  and  claimed  to  retain 
the  fund  for  the  satisfaction  of  his  debt.  But  the  Court,  not  questioning 
but  that  he  might  retain  as  against  any  right  of  the  husband,  held  that  he 
was  in  no  better  situation  than  the  husband,  and  decreed  a  settlement. 
In  Carr  v.  Taylor,  10  Yes.  574,  a  bill  was  sustained  by  the  wife  against 
an  administrator  and  the  assignees  of  a  bankrupt  husband.  If  the  hus- 
band obtains  actual  possession  of  the  property,  it  is  out  of  the  reach  of 
the  Court ;  but  while  it  is  within  the  control  of  the  Court,  it  will  enforce 
the  right  of  the  wife. 

But  what  the  husband  may  be  compelled  to  do  by  the  Court,  *he 
may  certainly  do  of  his  own  accord.  He  may  make  a  settlement 
of  his  wife's  expectancy  upon  her,  and  creditors  cannot  impeach  it.  The 
Court,  in  directing  settlement,  generally,  orders  a  reference  to  ascertain 
the  proper  settlement.  But  if  the  husband  should  assent,  it  would,  as  of 
course,  order  a  settlement  of  the  whole  property,  and  creditors  could  not 
be  heard  to  object  to  it.  He  may  assign  his  wife's  legacy  in  the  hands 
of  the  executor  to  a  trustee  for  the  wife's  separate  use ;  and  certainly  I 
YoL.  1.— 48 


[*510 


390  SOUTH   CAROLINA   EQUITY    REPORTS.  [*510 

suppose  such  a  trustee  might  maintain  a  bill  against  the  executor,  for  the 
benefit  of  the  wife.  But  in  equity,  an  assignment  may  be  made  on  suffi- 
cient consideration,  by  parol  merely.  There  can  be  no  doubt  but  that 
the  equity  of  the  wife  is  a  sufficient  consideration  ;  and  I  do  not  see  how 
such  an  assignment  of  the  wife's  legacy  could  be  questioned.  Notwith- 
standing the  decision  of  the  Court,  in  the  case  of  Price  v.  White,  (Caro- 
lina Law  Jour.  297,)  where  a  written:  settlement  was  actually  executed, 
1  do  not  perceive  how  any  question  could  arise  as  to  the  necessity  of 
recording  such  parol  assignment.  If  the  executor  should  pay  over  to  such 
a  trustee,  it  would  still  be  the  wife's  chose  in  action  ;  which  neither  the 
husband  nor  creditors  could  touch  without  the  aid  of  this  Court  or  some 
Court  of  concurrent  jurisdiction,  and  still  subject  to  the  wife's  equity,  if 
they  should  attempt  to  reach  it.  And  no  prejudice  could  arise  to  credi- 
tors, by  misleading  them  to  credit  the  husband,  on  the  appearance  of 
property  in  his  possession,  if  the  trustee  retained  the  money  or  any  other 
property  in  his  possession,  and  paid  over  the  rents  and  profits  to  the  wife. 
If  he  should  permit  chattels  to  go  into  the  hands  of  the  husband,  this 
might,  perhaps,  be  construed  a  surrender  of  the  trust,  and  the  marital 
rights  attach  upon  them,  so  as  to  render  them  liable  to  creditors. 

In  this  case,  we  are  to  regard  the  defendant,  Slowman,  as  having 
assigned  the  legacy  to  the  plaintiff.  If  the  solicitor  received  the  money 
merely  as  the  agent  of  Slowman,  then  I  think  it  is  the  same  thing  as  jf 
Slowman  himself  had  recovered  it,  and  he  must  be  regarded  as  having 
reduced  it  into  possession.  But  if,  in  consequence  of  an  understanding 
between  Slowman,  his  wife,  and  the  plaintiff,  he  was  directed  to  receive 
it,  and  pay  it  over  to  plaintiff  for  the  separate  use  of  the  wife,  this  was,  in 
effect,  an  assignment  to  plaintiff',  and  the  solicitor's  receipt  of  the  money 
was  plaintiff's  receipt.  To  the  plaintiff  alone  was  the  solicitor  responsible 
j^r,,-!  for  it,  and  Slovvman's  subsequent  assignment  of  a  part  of  *the 
-I  same  fund  to  the  defendant,  Jacol)s,  was  a  mere  nullity  ;  and  this, 
entirely  independent  of  any  effect  to  be  given  to  the  marriage  settlement. 
The  husband  has  never  had  possession  of  the  money,  and  whether  in  the 
hands  of  the  solicitor  or  the  plaintiff",  is  still  the  wife's  chose  in  action. 

The  Chancellor  states  that  ihe  solicitor  received  the  money  as  the  agent 
of  plaintiff.  But  it  is  supposed,  in  argument,  that  this  may  have  been  a 
mistaken  impression.  But  all  the  circumstances  of  the  case  indicate  that 
he  did  not  act  merely  as  the  agent  of  the  husband.  He  was  the  solicitor 
of  the  wife  in  the  suit  for  recovering  the  legacy  before  the  marriage,  and 
when,  after  the  marriage,  the  husband  became  a  party  to  the  suit,  he  con- 
tinued the  solicitor  of  husband  and  wife.  As  soon  as  he  received  the 
money,  he  advised  the  plaintiff  of  it,  and,  as  it  was  agreed  at  the  hearing, 
paid  over  the  principal  part  of  the  fund.  How  is  it  possible  to  account 
for  this,  but  by  such  an  understanding  as  I  have  supposed?  The  deed 
itself,  however  void  it  may  be  as  a  marriage  settlement,  and  though  we 
give  it  no  greater  effect  than  if  it  had  been  a  mere  verbal  agreement  in 
consideration  of  marriage,  yet  furnishes  plenary  evidence  of  the  under- 
standing and  agreement  of  the  parties,  to  assign  the  legacy  to  plaintiff". 
It  shows  that  the  solicitor  received  it  for  the  plaintiff",  and  that  he  is  the 
proper  person  to  maintain  the  suit  for  it.  It  is  possible  that  the  money 
might  have  been  recovered  of  the  solicitor  by  a  different  proceeding. 
But  the  plaintiff  is  entitled  to  have  the  rights  of  his  cestui  que  trust 


*511]         CHARLESTON,  FEBRUARY,  1837.  391 

declared,  as  against  the  husband  and  his  assignee,  Jacobs.     lie  comes 
here  properly,  to  give  effect  to  the  assignment. 
The  Chancellor's  decree  is  therefore  aiSrraed. 

Chancellors  De  Saussure  and  Johnson,  concurred. 

Chancellor  Johnston,  duhitante. 


Elizabeth  Gray,  Administratrix  of  John  H.  Jenkins,  and  Others,  v. 
Charles  Givens,  and  Others. 

In  no  cnse,  unless  aided  by  other  circumstances,  will  an  ouster  of  a  joint  tenant  be 

presumed  from  lapse  of  time,  under  a  period  of  twenty  years.  [*51"] 
Husband  decreed  to  elect  to  hold  his  deceased  wife's  lands  as  tenant  by  the  curtesy, 

or  to  take  under  the  statute  of  distributions.  [*513] 
In  analogy  to  the  statute  of  limitations,  the  time  which  the  party  to  be  affected  was 

under  a  disability,  is  to   be  deducted  from  the  lapse  of  time  which  is  to  raise  a 

presumption  of  title  against  him.  [*514] 

Heard  at  Beaufort,  February  Term,  1836,  before  Chancellor  Harper, 
who  delivered  the  following  decree  : — 

The  only  object  of  the  bill  which  it  is  necessary  to  consider,  is  to  obtain 
partition  of  a  tract  of  land  of  which  Joseph  John  Jenkins,  *de-  r^Kr-ic, 
ceased,  is  admitted  to  have  been  seized  at  the  time  of  his  death.  L 
The  bill  also  claimed  a  number  of  slaves,  and  this  seemed  the  more  mate- 
rial part  of  it.  But  this  claim  was  abandoned,  being  manifestly  unfounded, 
and,  as  it  seemed  to  me,  in  some  degree  vexatious.  Defendants  had  pur- 
chased the  interests  claimed  by  the  plaintiffs  in  the  slaves,  for  what 
appeared  to  be  an  adequate  and  full  consideration,  and  received  a  release; 
though  this  was  charged  by  the  bill,  to  have  been  obtained  fraudulently 
and  for  a  grossly  inadequate  consideration.  The  bill  was  dismissed  by 
consent  as  respects  the  plaintiff,  Joseph  Jenkins,  so  that  there  only 
remain  the  plaintiffs,  Elizabeth  Gray,  formerly  the  wife  of  John  H.  Jen- 
kins, and  Benjamin  P.  Jenkins,  her  son  by  the  said  John  H.  Jenkins,  and 
the  only  child  of  that  marriage. 

The  said  Joseph  John  Jenkins  died  in  the  year  1804,  leaving  his  wife, 
Martha  Jenkins,  afterwards  the  wife  of  the  defendant,  Charles  Givens, 
entitled  to  one-third  of  the  tract  of  land  in  question,  under  the  statute 
of  distributions,  and  three  children,  Joseph,  James  and  John  H.  Jenkins, 
<'the  latter  the  husband  and  father  of  the  plaintiffs,)  each  entitled  to  one- 
third  of  two-thirds.  James  is  since  dead,  intestate  and  without  issue. 
Mrs.  Martha  Jenkins  went  into  possession  of  the  land,  and  continued  in 
possession  till  her  marriage  with  the  defendant,  Charles  Givens,  and  she 
and  her  husband  remained  in  possession,  having  the  exclusive  use  and 
enjoyment,  until  her  death  in  1832.  Defendant,  Givens,  has  remained  in 
possession  ever  since.  Plaintiffs  claim,  in  the  right  of  John  H.  Jenkins, 
the  share  to  which  he  was  entitled  by  inheritance  from  his  father,  one- 
third  of  the  share  of  James  Jenkins  ;  and,  if  the  land  be  subject  to  par- 
tition, the  infant  plaintiff  is  entitled  to  one-third  of  two-thirds  of  his 
grandmother's  interest,  she  having  left  a  husband  and  two  other  children. 

Plaintiffs  pray  that  defendant,  Givens,  may  elect  either  to  hold  his 


392  SOUTH   CAROLINA   EQUITY   REPORTS.  [*512 

deceased  wife's  share  of  the  land  for  life,  as  tenant  by  the  curtesy,  or  that 
partition  may  be  made  of  it,  according  to  the  act  of  distributions.  De- 
fendant relies  on  the  length  of  his  possession  to  maintain  his  title  to  the 
land.  It  is  agreed  that  John  H.  Jenkins,  plaintiffs'  intestate,  came  of 
age  on  the  3d  February,  1818,  and  that  from  that  time  to  the  filing  of 
the  bill  (Sept.  1834),  more  than  sixteen  years  had  elapsed,  during  which 
defendant  was  in  exclusive  possession.  There  is  no  doubt  but  that  the 
possession  of  one  tenant  in  common  is  the  possession  of  the  other,  and 
*F;iq-i  that  his  possession  *will  not  be  adverse,  so  as  to  admit  the  opera- 
-'  tion  of  the  statute  of  limitations,  without  an  ouster  of  the  co- 
tenant.  But  it  is  not  necessary  that  there  should  be  an  actual  turning 
out  to  constitute  an  ouster.  Whatever  is  sufficient  to  give  the  co-tenant 
notice,  that  the  party  in  possession  claims  exclusively  for  himself  and  in 
his  own  right,  will,  I  think,  be  a  sufficient  ouster.  And  if  there  were 
circumstances  to  show  that  plaintiff's  intestate  had  such  notice,  I  should 
think  defendant's  title  matured  by  the  statute.  But  there  are  no  circum- 
stances beyond  the  naked  fact  of  possession.  No  doubt  an  ouster  may 
be  presumed,  from  the  mere  fact  of  a  very  long  exclusive  possession,  as 
in  the  case  of  Fisher  v.  Prosser,  Cowp.  217.  Where  one  tenant  in  com- 
mon had  been  in  possession  exclusively,  receiving  the  rents  and  profits  for 
about  forty  years  (double  the  time  required  for  the  English  statute  to 
run).  Lord  Mansfield  instructed  the  jury,  that  from  the  length  of  posses- 
sion they  might  presume  an  ouster.  It  may  be,  that  if  this  case  were 
before  a  jury,  it  might  be  within  their  discretion  to  find  an  ouster.  But 
I  cannot  venture  to  exercise  an  arbitrary  discretion.  If  I  could,  I  should 
incline  to  exercise  it  in  favor  of  the  defendant.  I  must  adopt  some  rule, 
and  what  shall  it  be  ?  Twelve,  sixteen,  or  eighteen  years  ?  I  can  think 
of  no  other  than  that  bar  which  is  made  to  quiet  almost  every  other  claim 
and  give  efficacy  to  long  possession — the  lapse  of  twenty  years.  As  is 
said  in  Riddlehoover  v.  Kinnard,  1  Hill  Ch.  Rep.  378,  "the  lapse  of 
twenty  years  is  sufficient  to  raise  the  presumption  of  a  grant  from  the 
State,  of  the  satisfaction  of  a  bond,  mortgage  or  judgment ;  of  the  grant 
of  a  franchise,  or  the  payment  of  a  legacy,  or  almost  anything  else  that 
is  necessary  to  quiet  the  title  to  property."  See  also  Hutchinson  v.  No- 
land,  1  Hill,  222.  But  in  no  case,  unless  aided  by  circumstances,  have 
such  presumptions  been  made  on  a  possession  of  less  than  twenty  years. 
I  must,  therefore,  declare  the  plaintiffs  entitled  to  partition  of  the  land 
in  question,  but  upon  all  the  circumstances  of  the  case,  I  think  they  must 
pay  the  costs. 

^  It  is  therefore  ordered  and  decreed,  that  a  writ  of  partition  issue,  to 
divide  the  land  in  question  ;  and  that  the  commissioners  allot  to  the  plain- 
tiffs, Mrs.  Elizabeth  Gray  and  Benjamin  P.  Jenkins,  such  portion  of  the 
said  land  as  their  intestate,  John  H.  Jenkins,  was  entitled  to  by  descent 
from  his  father,  Joseph  J.  Jenkins,  and  his  brother,  James  Jenkins  ;  that 
*51-ll  ^^^®  defendant,  Charles  Givens,  *elect  to  hold  as  tenant  by  the 
curtesy,  such  portion  of  the  said  land  as  his  deceased  wife  was 
entitled  to,  or  that  the  same  be  divided  in  pursuance  of  the  statute  of 
distributions ;  and  that  if  he  shall  elect  to  take  under  the  statute,  the 
commissioners  allot  to  the  plaintiff,  Benj.  P.  Jenkins,  one-third  of  two- 
thirds  of  the  said  portion  of  land.  Plaintiffs  to  pay  costs. 
The  defendant  appealed  on  the  grounds : — 


*K 


514]  CHARLESTOxN-,    FEBRUARY,    1837.  393 

1.  Because  the  Chancellor  decides  that  near  seventeen  years  peaceable 
possession  by  the  defendant,  Charles  Givens,  of  the  tract  of  land,  did  not, 
under  the  circumstances,  give. him  a  sufficient  title. 

2.  The  decree  is,  in  other  respects,  contrary  to  equity  and  the  evidence. 

A.  M.  Smith,  for  appellant. 
TreviUe,  contra. 

Chancellor  Harper  delivered  the  opinion  of  the  Court. 

The  Court  is  of  opinion  that  the  decree  in  this  case  must  be  affirmed. 
There  is  no  difference  of  opinion  as  to  the  length  of  time  which  is  neces- 
sary to  raise  the  presumption  of  an  ouster  by  one  tenant  in  common  of 
his  co-tenant.  It  is  urged  that  the  possession  of  the  defendant,  during 
the  minority  of  John  H.  Jenkins,  ought  to  be  taken  into  account  in  com- 
puting the  lapse  of  time,  or  that  it  is  a  circumstance  to  strengthen  the 
presumption  arising  from  the  sixteen  years'  possession,  after  he  came  of 
age.  I  think  it  has  not  before  been  questioned,  but  that  the  time  during 
which  the  party  to  be  affected  has  been  under  a  disability,  must  be 
deducted  in  computing  the  lapse  of  time,  in  analogy  to  the  statute  of 
limitations.  Such  was  the  case  of  Riddlehoover  v.  Kinnard  (1  Hill's 
Ch.  Rep.  375),  relied  upon  on  the  part  of  defendants.  The  rights  of  the 
parties,  who  were  infants  when  possession  was  taken  of  the  property, 
were  saved  by  the  decree.  Such  was  the  case  of  Henry  v.  Stuart  and 
Means,  2  Hill,  328.  The  decisions  have  been  numerous  and  the  practice 
habitual,  and  I  am  not  aware  of  any  doctrine  or  decision  to  the  contrary. 
If  it  were  otherwise,  the  consequence  might  follow  which  was  suggested 
by  the  plaintiff's  counsel.  If  the  possession  were  taken  in  the  very  early 
infancy  of  the  other  party,  the  title  might  be  matured  before  his  arriving 
at  age,  and  before  *the  statute  of  limitations  had  begun  to  run.  r^j-ci^ 
So  in  the  case  of  successive  minorities.  The  evils  complained  of,  L 
or  apprehended  from  this  source,  in  keeping  titles  indefinitely  suspended, 
would  be  effectually  remedied  by  such  a  construction.  But  this  time 
might  as  well  be  taken  directly  into  account,  as  to  serve  for  strengthening 
the  presumption  arising  from  a  subsequent  possession  of  less  than  twenty 
years.     The  decree  is  affirmed. 

Chancellors  Dk  Saussure,  Johnson  and  Johnston,  concurred. 


Elias  Horry  and  Rev.  Paul  Trapier,  Trustees  of  Mary  A.  and 
James  F.  Heyward,  v.  Dr.  Jos.  Glover,  Mrs.  E.  Glover  and 
John  Eraser,  Executors  of  J.  Heyward  Glover,  deceased,  and 
Others. 

A  remainder- man  may  sustain   a  bill  in  equity  against  the  tenant  for  life  for  the 

specific  delivery  of  slaves.  [*516] 
On  a  question  as  to  identity  of  slaves,  it  is  admissible  to  prove  that  the  slaves  in 

question  were  called  certain  names  and  said   by  other  negroes  to   belong   to  a 

certain  gang.  [517] 
The  tenant  for  life  of  slaves  as  a  trustee  for  the  remainder-man  is  bound  to  account, 

and  the  burthen  of  proof  to  show  the  increase  or  diminution  is  thrown  on  him ; 


394  SOUTH    CAROLINA    EQUITY    REPORTS.  [*515 

and  in  default  of  accounting,  he  shall  be  charged  with  the  value  of  such  number 
as  the  original  stock  may  reasonably  be  supposed  to  have  increased  ;  subject, 
however,  to  evidence  of  peculiar  circumstances,  accident  or  mortality.  [*520] 
A  specific  bequest  of  property  strictly  consumable  in  the  use,  such  as  corn,  wine,  &c., 
gives  the  absolute  property,  but  of  a  flock  or  herd  which  is  capable  of  increase, 
the  tenant  for  life  taking  the  increase  is  bound  to  keep  up  the  number  of  the 
original  stock.  [*52]] 
The  estate  of  tenant  for  life  having  been  divided  before  administration,  reference 
ordered  to  ascertain  if  sufficient  property  came  into  the  hands  of  her  son,  so  as  to 
make  his  estate  chargeable  for  the  stock,  &c.  [*521] 
Limitations  of  trusts  of  personalty  are  the  creatures  of  equity,  and  it  is  by  regard- 
ing the  tenant  for  life  as  a  trustee  for  the  remainder-man,  that    equity  takes 
jurisdiction  to  compel  the  execution  of  the  trust  to  the  remainder-man.     And  not 
only  the  personal  representative  of  the  tenant  for  life,  but  every  volunteer  and  pur- 
chaser with  notice,  are  bound  by  the  trust.  [*523] 
According  to  the  general  rule  laid  down  in  Sarter  vs.  GordDn,  that  a  bill  will  lie  for 
specific  delivery  of  slaves,    the  remainder-man  may  sustain  a  bill  against  the 
representatives  of  a  tenant  for  life,  or  volunteers  under  her,  to  compel  delivery  of 
slaves  bequeathed  to  him.  [*523] 
Where  one  states  that  his  slaves  have  come  into  possession  of  another  who  refuses 

to  deliver  them,  he  states  a  sufficient  ground  for  equity  jurisdiction.  [*524] 
But  if  it  should  appear  that  he  contracteil  for  slaves  generally,  with  no  view  to  their 
qualities,  or  to  any  individuals,  but  as  mere  merchandize,  the  remedy  is  at  law. 
[*52.3] 
When  an  issue  will  be  ordered.  [*525] 

The  interest  to  disqualify  a  witness  must  be  present  and  certain,  and  not  uncertain 
and  contingent  :  And,  therefore,  where  a  tenant  for  life  of  slaves  loaned  them  to 
her  son,  and  on  her  death  her  estate,  excluding  these  slaves,  was  divided  between 
her  son  and  daughter,  on  a  bill  by  the  remainder-men  against  the  administrators 
of  the  son,  for  specific  delivery  of  the  slaves,  the  husband  of  the  daughter  is  a 
competent  witness  for  the  plaintiflFs,  to  prove  the  identity  of  the  slaves ;  although 
if  the  plaintiffs  should  fail  to  identify  the  slaves,  and  the  defendants  to  prove  that 
the  stock  bad  perished,  the  estate  of  the  tenant  for  life  might  be  made  liable  for 
the  value,  and  the  witness  required  to  contribute.  [*52.5] 
On  the  qustion  as  to  the  identity  of  slaves,  where  the  original  stock  are  all  dead, 
hearsay  coming  from  negroes,  that  those  claimed  are  descendants,  is  admissible. 
[*527] 
The  general  rule  is,  that  if  a  trustee  wrongfully  refuses  to  deliver  on  demand,  he  is 
liable  if  the  property  afterwards  perishes  :  and  therefore,  defendant,  claiming  as 
a  volunteer  under-tenant  for  life,  was  held  liable  to  remainder-men  for  slaves,  who 
died  since  the  tiling  of  the  bill  to  compel  delivery.  [*528] 

Colletoa  District,  May  Term,  1836. 

The  following  decree  presents  a  full  statement  of  the  case : — 

Harper  Chancellor.  Daniel  Hey  ward,  by  his  will,  dated  in  1178, 
gave  to  his  brother  Thomas,  in  trust  for  his  (testator's)  wife,  for  life,  his 
plantation,  known  by  the  name  of  Springfield,  together  with  all  the 
negroes,  plantation  utensils,  stock  of  cattle,  hogs  and  sheep ;  also, 
twenty  head  of  cows  and  calves,  from  his  plantation  called  White  Hall. 
All  the  residue  of  his  estate  he  gives  to  his  brother,  Thomas  Heyward. 
The  testator  died  soon  after,  and  his  widow,  Mrs.  Margaret  Heyward, 
went  into  possession  of  the   property  devised  in  trust  for  her.     Mrs. 

Heyward,  in  the  year -,  married  Wilson  Glover.     The  bill  charges 

that,  during  the  coverture,  she  was  in  possession  of  all  that  estate  she 
derived  from  her  first  husband,  Daniel  Heyward's  will,  as  her  own  and 
separate  estate,  and  enjoyed  the  same  free  from  the  let,  control,  or  Inter- 
erence  of  the  said  Wilson  Glover,  and  continued  in  like  manner,  in  pes- 


*515]  CHARLESTON,   FEBRUARY,    1837.  395 

session  after  his  death,  (she  haviiiG^  survived  him,)  until  her  own  death  in 
1832. 

Thomas  Heyward,  the  residuary  devisee  of  Daniel  Heyward,  by  his 
will,  gave  his  whole  estate,  real  and  personal  to  his  wife,  Mrs.  Eliza  Hey- 
ward, and  she  by  deed  executed  in  1832,  released  *to  the  plaintiffs,  r-j.-,'/, 
Elias  Horry  and  Paul  Trapier,  all  the  reversionary  interest  which  ^  ''^" 
Thomas  Heyward  took  in  the  personal  estate  of  Daniel  Heyward  after 
the  life  estate  of  Mrs.  Glover,  in  trust  for  the  plaintiffs,  Mary  A,  and 
James  F.  Heyward. 

The  bill  charges,  that  the  slaves  who  constituted  part  of  Mrs.  Glover's 
life  estate,  were  by  her,  in  her  lifetime  put  into  possession,  by  way  of 
loan,  of  her  son,  John  Heyward  Glover,  now  also  deceased,  and  at  his 
death  came  into  the  possession  of  his  executors.  The  objects  of  the  bill 
is  to  obtain  the  delivery  of  the  slaves  who  were  given  by  Daniel  Heyward 
to  his  wife,  afterwards  Mrs.  Glover,  for  life,  or  their  descendants,  and  to 
have  au  account  of  their  hire  from  the  death  of  Mrs.  Glover ;  also  to 
have  an  account  of  the  cattle,  &c.  The  executors  of  John  Heyward 
Glover,  the  surviving  executors  of  Wilson  Glover,  and  the  administrator 
of  Mrs.  Glover,  are  made  parties  to  the  bill. 

The  first  question  made,  was  whether  the  bill  would  lie,  as  the  plaintiffs 
have  adequate  remedy  at  law,  by  an  action  of  trover  or  detinue.  Inde- 
pendently of  considering  the  tenant  for  life  as  a  trustee,  bound  to  account 
and  therefore  amenable  to  this  Court,  it  has  been  determined  by  the 
Court  of  Appeals,  in  the  case  of  Sarter  v  Gordon,  (ante  121,)  decided 
at  Columbia,  that  as  a  general  rule,  a  bill  may  be  maintained  for  the 
specific  delivery  of  slaves.  Some  exceptions  are  stated,  but  this  case 
does  not  come  within  the  exceptions,  but  within  the  express  reason  of  the 
rule.  Entertaining  jurisdiction  for  this  purpose,  the  Court  will  do  com- 
plete justice  between  the  parties,  in  relation  to  the  whole  property  and 
the  matters  of  account. 

Then  it  becomes  merely  a  matter  of  evidence  to  identify  the  slaves  who 
are  subject  to  the  disposition  of  the  will. 

By  the  inventory  and  appraisement  of  the  estate  of  Daniel  Heyward, 
made  in  1783,  it  appears  that  there  were  then  on  the  Springfield  planta- 
tion, twenty-two  slaves,  who  are  named.  It  is  not  surmised  that  any  of 
the  original  stock  are  now  in  existence,  but  those  now  claimed,  are  claimed 
as  the  descendants  of  the  former. 

The  testimony  chiefly  relied  on  by  the  plaintiffs,  is  that  of  the  witness, 
John  Ferrabee.  Tliis  witness  thinks  he  heard  John  Heyward  Glover 
say,  the  Heywards  had  some  claim  on  negroes  after  his  mother's  death. 
Witness  "  thought  they  were  the  negroes  that  he  said  belonged  to  his 
mother.  He  said,  one  woman  at  Wi-ightfield,  named  Fanny,  belonged  to 
his  mother.  Fanny  is  *now  alive,  and  has,  he  believes,  fourteen  rj^-iir 
children  and  grandchildren. — Xancy  and  her  children,  Solomon,  L 
Yenus,  Phillis,  and  November — one  of  these  mentioned,  died  last  fall, 
aged  about  four  years — Sara,  Robert,  June,  Stephen,  Adam,  June,  Affie, 
Sylvia.  Sally  died  last  week,  she  was  about  four  years  old.  Witness 
says  he  recognizes  some  of  the  negroes  of  H.  Glover's  estate,  by  the 
name  of  Springfield  gang  ;  has  heard  the  negroes  call  them  so,  and  no 
one  else.     Fanny  and  her  children  and  grandchildren  are  a  portion  of 


396  SOUTH    CAROLINA   EQUITY   REPORTS.  [*517 

them ;    also,   Charley,   Sampson,   Joe,   Tom,    Harriet,    Monday,   Tirah, 
Rachel,  Mary  Ann,  Aceabee,  Hannah,  Toney,  Polly  and  children." 

An  objection  was  taken  to  the  last  part  of  the  witness'  testimony — that 
the  negroes  called  these  the  Springfield  gang — as  being  hearsay  from 
slaves.  But  it  does  not  strike  me  in  that  point  of  view.  The  effect  of 
the  testimony  does  not  depend  on  the  credit  to  be  given  to  the  slaves 
whose  declaration  are  testified  to.  The  fact  that  the  slaves  did  call  them 
so,  depends  on  the  credit  of  the  witness  who  was  examined.  Then  the 
inference  is  drawn  from  that  fact,  that  it  cannot  be  conceived  why  the 
slaves  should  have  called  them  so,  if  they  were  not  so  in  fact.  It  is  as  if 
the  witness,  attempting  to  identify  them  by  their  names,  had  testified  that 
the  slaves  called  one  Fanny,  or  another  Toney.  This  could  not  be  called 
hearsay.  Another  portion  of  the  testimony  of  the  witness,  with  respect 
to  what  his  brother  told  him,  I  consider  inadmissible. 

This  testimony  is,  I  think,  entitled  to  its  weight  but  it  is  very  strongly 
corroborated  by  other  circumstances.  On  the  part  of  the  defendants 
there  is  opposed  to  it  the  testimony  of  the  witness,  Richard  Y.  Carey, 
(who  was  examined,  however,  on  the  part  of  the  plaintiffs.)  The  testi- 
mony of  this  witness  was  given  in  a  very  confused  and  precipitate  manner, 
and  I  may  not  have  taken  it  down  with  perfect  accuracy.  The  amount 
of  it  was,  that  he  was  in  the  service  of  John  Heyward  Glover,  managing 
his  plantation,  from  1810  to  1821 ;  that  there  were  a  certain  number  of 
slaves,  (eight  altogether,)  known  as  the  Springfield  gang,  who  were  first 
removed  from  Springfield,  to  a  place  called^the  Old  Store,  and  thence  to 
Mr.  Glover's  plantation  of  Wrightfield  ;  these  were  mostly  superannuated 
and  are  dead,  without  children.  In  this  last  particular  he  is  corroborated 
by  Ferrabee.  But  thus  far  his  testimony  is  not  inconsistent  with  that  of 
Ferrabee.  There  may  have  been  other  Springfield  negroes  besides  those 
5i;cio-]  brought  from  the  Old  *Store  to  Wrightfield,  unknown  to  the  wit- 
-l  ness.  Indeed,  he  says  Col.  Glover  did  not  pretend  to  point  out 
all  the  negroes  that  were  to  go  to  Judge  Heyward's  family  after  his 
mother's  death.  But  he  adds  that  in  1813,  he,  with  the  assent  of  Col. 
Glover,  gave  to  James  Heyward  a  list  of  those  slaves,  then  amounting  to 
eight.  In  this  there  seems  to  be  some  contradiction.  With  respect  to 
Fanny,  the  witness  is  more  explicit.  He  states  that  she  was  not  one  of 
the  Springfield  negroes.  He  knew  her  at  about  the  age  of  nineteen, 
when  she  was  brought  from  Wilson  Glover's  Swamp  plantation.  This  I 
suppose  to  be  his  reason,  for  not  thinking  her  one  of  the  Springfield 
negroes,  in  addition  to  his  never  having  heard  her  so  called.  This  seems 
to  be  in  some  degree  contradictory  of  Ferrabee,  but  it  is  not  absolutely 
inconsistent.  She  may  have  been  sent  from  Springfield  to  the  Swamp, 
and  thence  to  Wrightfield.  If  there  were  more  direct  contradiction, 
however,  I  think  the  circumstances  give  the  preponderance  to  Ferrabee's 
testimony.  First,  the  intrinsic  improbability  of  such  a  gang  of  twenty- 
four  slaves,  pretty  well  apportioned  as  respects  men  and  women,  becom- 
ing extinct  during  a  lapse  of  fifty-three  years;  and  defendants  indicate  no 
other  slaves  as  being  descendants  of  the  stock  in  question. 

Mr.  Nathaniel  Heyward,  who  was  examined  as  a  witnesss,  stated  that 
he  never  heard  of  the  Springfield  gang  of  negroes  having  died,  or  of  any 
extraordinary  decrease ;  and  from  his  opportunities  of  knowing,  this 
could  hardly  have  occurred  without  his  having  heard  of  it. 


*518]         CHARLESTON,  FEBRUARY,  1837.  397 

The  testimony  of  Mrs.  Hamilton,  was,  that  about  the  time  referred  to 
by  Carey,  (twenty-five  years  ago,  which  must  have  been  about  1810,  or 
1811,)  Mrs.  Glover,  passing  by  the  Springfield  plantation,  spoke  of  the 
gang  of  slaves  as  then  existing  on  it. 

But  more  satisfactory  than  these  is  the  testimony  of  Mr.  John  Huger. 
He  states,  that  a  short  time  before  the  death  of  Heyward  Glover,  he  saw 
a  list  of  the  negroes,  in  the  handwriting  of  Heyward  Glover,  which  was 
sent  by  him  to  his  mother,  with  an  offer  to  deliver  them  up.  These 
negroes  the  witness  heard  Wilson  and  Mrs.  Glover  speak  of,  as  connected 
with  the  will  of  Daniel  Heyward.  Mrs.  Glover  offered  them  to  the  wit- 
ness for  her  life,  but  he  declined  receiving  them.  According  to  the  list, 
they  then  amounted  to  twenty-five  or  thirty.  He  believes  the  negroes 
are  now  at  Wrightfield.  Mr.  Huger  identifies  no  particular  negroes,  but 
the  *number  stated  by  him  agrees  very  well  with  the  number  now  r^icriQ 
claimed.  It  was  agreed,  however,  at  the  hearing,  that  the  estates  ^ 
of  Wilson  Glover  and  Mrs  Glover,  have  been  divided  between  their 
children,  Heyward  Glover  and  Mrs.  Huger,  (wife  of  John  Huger,)  and 
on  that  division  the  negroes  at  Wrightfield,  (by  which  I  understand  the 
negroes  now  in  question,)  were  not  divided  or  brought  into  account. 
Now,  connect  this  with  the  testimony  of  Mr.  Huger,  and  can  I  possibly 
avoid  making  the  inference  that  they  were  reserved  from  division  on  the 
knowledge  of  the  parties,  that  Mrs.  Glover's  interest  in  them  had  termi- 
nated with  her  life,  and  that  they  were  not  sul)ject  to  division  ?  Nor  is 
this  inference  weakened  by  the  testimony  on  the  part  of  the  defendants, 
to  show  that  there  had  been  an  unusual  mortality  among  the  Springfield 
negroes.  A  paper  was  produced,  in  the  handwriting  of  AVilson  Glover, 
purporting  to  be  an  account  of  the  slaves  in  1783,  and  having  the  word 
"  dead  "  written  opposite  to  many  of  their  names.  I  do  not  understand 
this  to  purport  that  they  were  then  dead.  The  paper  is  an  account  of 
slaves  then  removed  from  the  Springfield  plantation.  I  conclude  the 
memorandum  "  dead,"  to  have  been  made  afterwards  ;  perhaps  at  various 
times,  as  the  deaths  occurred.  If  so,  it  affords  no  evidence  that  the  gang- 
did  not  increase.  No  doubt  all  the  original  stock  are  dead  now.  The 
births  of  two  children  are  noted  in  1*783.  This  seems  to  have  been  done 
at  the  time  of  making  the  list,  and  I  suppose  they  were  then  born,  but 
the  paper  does  not  purport  to  give  any  account  of  births  afterwards. 
But,  if  all  so  marked  were  dead  at  that  time,  it  may  very  well  be  that  the 
residue  have  increased  to  the  number  now  claimed.  Nor  do  I  attach  any 
importance  to  the  testimony  of  the  witness,  Broughton,  that  heard  Mrs. 
Judge  Heyward  say  she  believed  they  were  all  dead,  or  of  Mrs.  Jane 
Glover,  that  she  heard  of  the  negroes  having  been  removed  to  Pedee,  and 
of  great  mortality  among  them  there.  It  is  plain  that  there  must  have 
been  some  unusual  mortality  among  them,  or  their  numbers  would  have 
been  much  greater  than  they  are.  Within  the  same  time  many  stocks  of 
slaves  have  doubled  or  trebled  their  numbers,  while  the  number  now 
claimed  is  about  the  same  as  that  of  the  original  stock. 

I  think,  on  the  evidence,  the  plaintiffs'  claim  must  be  sustained.     But 
I  think  there  is  much  force  in  the  argument  of  counsel,  that  the  tenant 
for  life  was  trustee  for  the  remainder-man,  and  the  burden*  is  on  r^itcnrt 
her   legal   representative   to   account.     For  many  purposes  the  L     " 
tenant  for  life  is  regarded  as  trustee.     He  is  bound  to  make  an  iuventory 


398  SOUTH   CAROLINA    EQUITY   REPORTS.  [*520 

of  the  property,  that  the  remainder-man  may  be  able  to  identify  it;  and 
by  parity  of  reason,  it  seems  to  me  that  in  the  peculiar  case  of  slaves, 
where  the  increase  goes  to  the  remainder-man,  he  is  bound  to  keep  an 
account  of  the  increase.  Certainly  the  defendants  have  not  shown  the 
stock  of  slaves  in  question  to  be  extinct.  Then  in  default  of  accounting, 
how  shall  the  estate  of  the  tenant  for  life  be  charged  ?  I  can  conceive  of 
no  other  method  than  this,  to  charge  it  with  the  value  of  such  a  number 
of  slaves  as  the  original  stock  may  reasonably  be  supposed  to  have  in- 
creased to — subject,  to  be  sure,  to  evidence  of  any  peculiar  circumstances, 
accident  or  mortality,  which  may  have  prevented  increase.  It  seems  to 
me  that  it  would  be  to  the  disadvantage  of  defendants  to  be  charged  in 
this  manner.  Plaintiffs,  however,  claim  no  more  than  the  negroes  speci- 
fied, and  to  those  I  think  they  are  entitled. 

Plaintiffs  also  claim  the  value  of  one  or  two  of  the  slaves,  who  died 
after  the  termination  of  the  life  estate,  and  before  the  hearing.     In  the 

case  of ,  decided  by  the  Court  of  Appeals  at  Columbia,  at  its  last 

sitting,  it  was  held,  that  in  an  action  of  trover,  where  one  of  the  slaves 
had  died  in  possession  of  defendant,  the  measure  of  damage  was  the  hire 
up  to  the  death,  or  the  interest  on  the  value  from  the  time  of  the  conver- 
sion ;  but  the  jury  were  not  bound  to  give  the  value  of  the  slave  when 
living,  unless  there  were  reasons  to  believe  the  death,  in  some  manner,  a 
consequence  of  the  defendant's  act.  Upon  further  examination,  I  have 
some  reason  to  doubt,  whether  that  case  was  sufficiently  considered.  But 
as  it  is,  I  must  be  governed  by  it,  and  this  claim  must  fail. 

Plaintiffs  are  also  entitled  to  hire  of  the  slaves  from  the  1st  of  January, 
1833,  until  they  shall  be  delivered. 

Evidence  was  offered  of  the  value  of  the  hire,  to  save  the  necessity  of 
a  reference ;  in  which  course  I  understood  both  parties  to  acquiesce. 
There  were  shown  to  be  fifteen  working  hands,  and  the  average  value  of 
hire  for  the  years  in  question  was  fixed  at  $60  per  annum,  making  $900 
per  annum. 

Plaintiffs  are  also  entitled  to  the  value  of  the  stock  of  cattle,  hogs  and 
sheep.  By  the  inventory  of  1783,  it  appears  that  there  were  then  on  the 
Springfield  plantation,  183  head  of  cattle,  30  hogs,  and  61  sheep.  The 
*cQi-|  value  of  the  cattle  was  agreed  to  be  $5  per  head  ;  *but  there  was 

^  -J  no  evidence  to  that  of  the  hogs  and  sheep.  The  ground  was  taken 
that  a  bequest  for  life  of  this  sort  of  property,  which  was  said  to  be  con- 
sumable in  the  use,  gives  the  entire  property.  But  this  is  contrary  to 
the  well-settled  rule.  A  specific  bequest  of  property,  strictly  consumable 
in  the  use,  such  as  corn,  wiue,  &c.,  gives  the  absolute  property.  But  of 
a  flock  or  herd,  which  is  capable  of  increase,  the  tenant  for  life,  taking 
the  increase,  is  bound  to  keep  up  the  number  of  the  original  stock.  The 
principle  is  explained  by  Judge  Nott,  in  the  case  of  Devlin  v.  Patterson, 
referred  to  and  recognized  in  Robertson  v  Collier,  1  Hill,  Ch.  R.  370. 
Such  is  the  rule  of  the  civil  law,  from  which  ours  is  taken.  1  Doraat  B. 
1,  Tit.  11,  Sec.  3.  The  case  of  Randall  v.  Russell,  3  Meriv.  190,  which 
was  relied  on,  was  one  in  which  the  stock  of  cattle,  &c.,  was  held  to  have 
been  given  absolutely  by  the  terms  of  the  will. 

Another  question  arises,  what  estate  is  to  be  charged  with  these  ? 
There  is  no  showing  that  the  cattle  went  into  the  possession  of  John 
Heyward  Glover.    I  cannot  charge  the  estate  of  Wilson  Glover  with  them, 


*52l]  CHARLESTON-,   FEBRUARY,    1837.  399 

contrary  to  the  plaintiff's  own  allei^ation,  that  Mrs.  Glover  retained  her 
whole  ])roperty  as  a  separate  estate.  The  estate  of  Mrs.  Glover  is  cer- 
tainly liable,  but  her  administrator  answers,  that  he  has  received  no 
effects  of  his  intestate,  and  has  been  informed  that  she  died  possessed  of 
no  effects  besides  some  articles  in  her  personal  use  of  little  value.  It  is 
true  that  it  was  agreed  that  the  estates  of  Mrs.  Glover  and  Wilson  Glo- 
ver, were  divided  between  Heyward  Glover  and  Mrs.  Huger,  but  there 
was  no  evidence  as  to  what  her  estate  was.  I  may  conjecture  that  there 
was  an  estate  of  Mrs.  Glover,  divided  between  her  children  before  admin- 
istration. If  Heyward  Glover  did,  in  this  way  receive  enough  of  his 
mother's  estate  for  the  purpose,  it  might  be  followed  in  the  hands  of  his 
representatives,  and  rendered  liable  for  a  moiety  of  the  demand.  But  there 
was  no  proof  of  this,  and  I  cannot  decree  upon  conjecture.  The  plain- 
tiffs may  have  a  reference  upon  this  matter  if  they  think  proper. 

It  is  ordered  and  decreed  that  the  defendant,  Mrs.  Eliza  Glover,  exe- 
cutrix of  John  Heyward  Glover,  deceased,  deliver  to  the  plaintiff's  the 
slaves  before  enumerated,  which  are  now  in  her  possession,  and  pay  for 
the  hire  of  slaves,  at  the  rate  of  nine  hundred  dollars  per  annum  from  the 
1st  day  of  January,  1833,  until  the  *said  slaves  shall  be  delivered,  r^^roo 
with  interest  on  the  hire  of  each  year  from  the  end  of  the  year,       ^     '''' 

The  defendants  appealed  on  the  grounds  : — 

1.  That  the  plaintiffs  had  plain  and  adequate  remedy  at  law,  and, 
therefore,  equity  ought  not  to  entertain  jurisdiction  of  the  case. 

2.  The  defendants  had  nothing  of  which  to  make  discovery  in  any 
manner  relating  to  the  case  made  by  the  bill,  so  that  equity  could  not, 
on  the  ground  of  discovery,  entertain  jurisdiction. 

8.  That  Mr.  John  Huger  was  directly  interested  in  the  event  of  the 
suit,  and  therefore  his  evidence  is  inadmissible. 

4.  That  hearsay  evidence  has  been  admitted  in  the  case  on  points  in 
which  it  was  inadmissible,  and  ought  to  have  been  excluded. 

5.  That  hearsay  from  negroes  has  been  admitted,  and  ought  to  have 
been  excluded. 

6.  That  on  the  facts  legally  yjroved,  and  the  law  applicable  to  those 
facts,  the  decree  ought  to  have  been  for  the  defendants. 

Plaintiffs  insist  that,  as  the  decree  is  opened  by  the  appeal,  the  defend- 
ants should  account  for  the  negroes  that  died  since  the  commencement  of 
this  action. 

And,  that  the  estate  of  Wilson  Glover,  should  be  charged  with  the 
cattle,  as  it  appeared  on  the  evidence  that  he  disposed  of  them — and  that 
they  were  not  the  separate  estate  of  Mrs.  Glover, 

Petigru  and  Lesesne,  for  the  plaintiffs. 
King,  for  defendants. 

Chancellor  Harper  delived  the  opinion  the  Court. 

The  two  first  grounds  of  appeal  by  defendants  may  be  disposed  of 
together.  On  both  the  grounds  taken  in  the  decree,  the  jurisdiction  of 
the  Court  must  be  supported.  It  is  admitted  that  during  the  lifetime 
of  the  tenant  for  life  of  personal  chattels,  he  is  regarded  as  a  trustee 
for  the  remainder-man.  But  the  trust  is  supposed  to  terminate  with  his 
life.     But  this  is  contrary  to  the  main  purpose  for  which  he  is  made  a 


400  SOUTH   CAROLINA   EQUITY   REPORTS.  [*522 

trustee.  It  is  hardly  necessary  to  say,  that  at  common  law,  there  could 
be  no  limitation  of  personal  chattels  to  one  for  life,  with  remainder  to 
another,  and  that  a  gift  for  a  day  or  an  hour,  vested  the  whole  in  the  first 
-^KQo-i  taker.     *Executory  devises  and  the  limitations  of  the  trusts  of 

"'*-'  personalty,  by  which  alone  such  dispositions  can  be  rendered 
eifectual,  are  exclusively  the  creatures  of  equity.  It  was  by  regarding 
the  tenant  for  life  as  a  trustee,  that  equity  took  jurisdiction,  for  the  pur- 
pose of  compelling  his  personal  representative  to  execute  the  trust,  by 
delivering  the  property  to  the  person  entitled  in  remainder.  The  cases 
cited  in  argument  are  amply  sufficient  to  establish  this.  Then  not  only 
the  personal  representative  of  the  tenant  for  life,  but  every  volunteer  and 
every  purchaser  with  notice,  on  a  well-known  principle,  are  bound  by  the 
trust.  If,  then,  as  the  decree  establishes,  (and  we  think  correctly,)  John 
Heyward  Grlover  was  a  volunteer  under  his  mother,  he  and  his  personal 
representative  are  equally  bound  to  the  execution  of  the  trust.  And  if  it 
were  shown  that  Courts  of  law  recognize  the  division  of  personal  estate 
between  tenant  for  life  and  remainder-man,  this  would  not  oust  the  Court 
of  Equity  of  its  ancient  and  accustomed  jui'isdiction.  See  the  reason- 
ing of  the  Court  in  King  v.  Baldwin,  IT  Johns.  Rep.  384. 

We  think,  too,  that  the  nature  of  the  property  sought  by  the  bill,  forms 
a  ground  of  jurisdiction.  It  is  for  the  specific  delivery  of  slaves  We  do 
not  feel  at  all  disposed  to  depart  from  the  principles  of  the  decision  in 
Sarter  v.  Gordon,  (ante,  121,)  quoted  in  the  decree,  to  the  reasoning  of 
which  I  refer  It  is  admitted  that  in  some  particular  instances,  such 
as  are  referred  to  in  that  case,  where  there  are  circumstances  to  give 
a  peculiar  value  to  the  slave,  with  respect  to  the  person  who  seeks 
to  recover  him,  and  to  show  that  damages  would  be  an  inadequate  com- 
pensation, there  may  be  a  ground  of  jurisdiction.  But  it  is  urged,  that 
such  circumstances  ought  to  be  stated  and  proved,  before  the  case  is  taken 
from  the  ordinary  tribunals  of  the  country,  to  which  it  properly  belongs. 

But  if  it  were  necessary  to  state  such  circumstances,  I  think  they  are 
sufficiently  stated  in  the  present  case.  The  slaves  in  question  were  a  gift 
to  the  cestui  que  trust  of  plaintiff,  by  a  friend  and  relation,  and  were 
received  by  her  from  the  gift  of  another.  If  the  Court  gives  that  con- 
sideration to  the  just  and  honoraljle  feeling  which  causes  a  man  to  set  a 
peculiar  value  on  an  heir-loom,  derived  to  him  from  his  ancestors,  and  to 
regard  the  damages  which  a  jury,  estimating  its  money  value,  would  give, 
as  no  compensation  for  its  loss,  is  there  less  ground  for  its  interposition 
*524l  *^°  ^^^®  ^^^  slaves — sentient  and  intelligent  being — derived  to 
-^  him  from  a  friend  or  ancestor,  whom  he  may  be  supposed  to  love 
or  venerate  ?  Are  not  family  slaves,  who  are  often,  and  I  think  I  may 
say  generally,  attached  dependants,  of  as  much  value  to  the  feelings  of 
the  owner  as  a  piece  of  family  plate  or  a  family  picture  ?  As  was  said 
by  the  Chancellor  in  Fells  u.  Read,  (3  Yes.  70:)  "It  would  be  great 
injustice  if  an  individual  cannot  have  his  property,  without  being  liable 
to  the  estimate  of  people  who  have  not  hi^  feeling  upon  it."  It  was  urged, 
that  an  effectual  remedy  was  given  by  the  late  act  regulating  the  action 
of  trover.^  But  that  act  only  provides  that  security  shall  be  given  for  the 
forthcoming  of  the  slaves  to  answer  the  damages  which  may  be  recovered. 
If  the  defendant  will  pay  the  damages  the  title  of  the  slaves  is  vested  in 


*524]         CHARLESTON,  FEBRUARY,  1837.  401 

him.     But  it  is  on  the  ground  of  the  inadequacy  of  damages  as  a  com- 
pensation that  the  Court  interferes, 

I  am  of  opinion,  however,  in  pursuance  of  the  views,  in  Sarter  v. 
Gordon,  that  when  a  man  states  that  his  slaves  has  come  into  the  pos- 
session of  another,  who  refuses  to  deliver  to  him,  or  that  he  has  contracted 
for  the  purchase  of  specific  slaves  and  the  vendor  refuses  to  perform  his 
contract,  he  states  a  sufficient  ground  of  equity  jurisdiction.  Any  other 
construction  would  render  the  law  uncertain  and  impracticable.  It  is 
admitted  that  in  some  cases  a  bill  may  properly  lie  for  a  specific  delivery 
— as  where  the  slave  has  been  born  and  brought  up  in  the  owner's  family, 
or  has  for  a  long  time  belonged  to  it,  so  that  a  peculiar  attachment  may 
be  supposed  to  have  been  formed  for  his  peculiar  qualities,  which  render 
him  of  more  value  to  the  owner  than  to  any  one  else  ;  or  where  a  contract 
has  been  made  for  a  slave  on  account  of  such  peculiar  qualities,  and  the 
object  of  the  contract  could  not  be  obtained  without  a  specific  delivery ; 
or,  suppose  a  mother  to  be  converted  by  a  stranger,  having  an  infant 
child  in  the  possession  of  the  master,  or  a  husband  or  wife  to  be  so  con- 
verted, leaving  the  other  in  the  master's  possession.  But  how  ai'e  these 
circumstances  to  be  ascertained  by  evidence  ?  By  what  rule  will  you  fi.x 
the  length  of  time  that  a  slave  shall  have  belonged  to  his  owner,  so  that 
he  may  be  supposed  to  have  formed  a  particular  attachment  for  him  ? 
Will  you  go  into  evidence  of  the  slave's  character  and  qualities  to  deter- 
mine whether  they  are  such  as  give  him  a  peculiar  value  to  the  feelings 
of  his  owner,  or  to  have  formed  a  probable  inducement  to  the  purchaser 
in  making  a  contract  for  *him  ?  Suppose  him  to  be  one  of  a  [-:icfr£)- 
family  of  slaves  still  in  the  owner's  possession,  and  who  are  reu-  •- 
dered  of  less  value  by  his  loss,  (which  is  often  the  case,)  will  you  fix  the 
degree  of  relationship — such  as  that  of  a  parent  or  child,  husband  or 
wife — which  would  authorize  the  Court  to  interfere  ?  Such  a  construc- 
tion would  tend  greatly  to  litigation,  and  afford  room  for  great  looseness 
of  discretion.  I  can  think  of  no  safe  or  practicable  rule  but  that  already 
expressed — that  if  a  man's  slave  has  come  into  the  possession  of  another 
who  refuses  to  deliver  him,  or  if  he  has  contracted  for  specific  slaves,  he 
has  a  right  to  a  specific  delivery.  But  if  the  contrary  appears — that  he 
contracted  for  slaves  generally,  with  no  view  to  any  particular  individuals, 
or  if  they  were  contracted  for  as  merchandize,  to  sell  again,  the  remedy  is 
at  law. 

I  agree  with  the  appellant's  counsel,  that  when  there  is  a  complicated 
question  of  title — when  there  is  much  conflicting  testimony,  or  more  espe- 
cially when  the  credit  due  to  testimony  is  to  be  weighed,  a  jury  is  the 
proper  tribunal  for  the  trial  of  those  questions.  And  if  the  suggestion 
had  been  made  below,  I  might  perhaps  have  directed  an  issue.  But  it 
was  not  demanded  below,  and  at  the  present  stage  of  the  case,  when  so 
great  delay  would  be  occasioned  to  the  parties,  and  having  no  serious 
reason  to  doubt  the  correctness  of  the  conclusion  to  which  1  have  arrived, 
I  think  we  are  not  authorized  to  direct  it  now. 

The  next  ground  relates  to  the  admissibility  of  the  testimony  of  John 
Huger.  The  rule  is,  that  to  disqualify  a  witness,  "  the  interest  must  be  a 
present,  certain  interest,  and  not  uncertain  or  contingent.  So  it  was 
held  that  a  steward  was  competent  to  prove  that  a  fine  was  payable  on 
the  death  of  the  lord,  although  the  establishment  of  the  affirmative  might 


402  SOUTH    CAROLINA    EQUITY   REPORTS.  [*525 

render  a  rcadmission  necessary  and  entitle  him  to  a  fee."  2  Stark  Ev. 
745.  The  record  must  certainly  be  evidence  to  fix  or  rebut  his  liability 
in  a  future  action.  As  observed  in  Cotchett  v.  Dixon,  4  M'Cord,  314, 
"  it  is  not  enough  that  he  has  an  interest  in  the  subject-matter  in  litiga- 
tion— it  must  be  an  interest  in  the  event  of  the  particular  cause."  What 
is  the  cause  at  issue  ?  The  bill  states  that  ttie  defendant,  Mrs.  Glover,  is 
in  possession  of  certain  slaves,  which  are  claimed  as  being  descended  from 
those  bequeathed  by  the  will  of  Daniel  Heyward,  which  theplaintilfs  state 
*Kc>p-i  they  are  prepared  to  identify  *by  proof.  The  defendant  requires 
-J .  the  proof  to  be  made,  and  urges  in  defence  that  the  stock  of  slaves 
bequeathed  by  Daniel  Heyward  has  perished.  The  testimony  of  the 
witness  would  seem  rather  to  be  against  his  interest  in  this  cause.  It  is 
not  disputed  but  that  these  slaves  once  belonged  to  Mrs.  Glover.  If 
they  are  still  part  of  her  estate,  undivided,  he  has  a  claim  in  right  of  his 
wife  to  a  moiety  of  them,  which  would  be  defeated  by  the  recovery  of  the 
plaintiffs.  If  they  were  divided  as  part  of  her  estate,  and  fell  to  the 
share  of  John  Heyward  Glover,  his  representative  would  have  a  claim 
against  the  witness  for  contribution.  In  this  cause  then,  he  has  no 
interest.  But  it  was  thrown  out  in  argument,  and  the  Court  intimated 
that  there  might  be  just  ground  for  the  opinion,  that  another  case  might 
be  made  in  which  he  would  have  an  interest.  If  the  plaintiffs  should  fail 
to  identify  the  slaves,  and  if  the  defendant  failed  to  prove  that  the  stock 
had  perished,  then  the  estate  of  Mrs.  Glover  might  be  made  liable  for  the 
estimated  value  of  such  a  stock  of  slaves,  she  having  been  trustee  for  the 
remainder-man,  and  the  witness  and  John  Heyward  Glover,  having  divided 
her  estate,  it  might  be  pursued  in  their  hands,  if  the  plaintifTs  should  fail  to 
recover  in  this  case.  This  is  similar  in  principle  to  the  case  of  Briggs  v. 
Crick,  5  Esq.  N.  P.  C.  99  ;  Duncan  v.  Bell,  2  Nott  &  M'Cord,  153; 
Lightner  and  Martin,  2  M'Cord,  514,  and  Harth  v.  Johnson,  2  Bailey, 
183,  In  an  action  for  the  breach  of  warranty  of  soundness  of  a  horse  or 
a  slave,  the  defendant's  vendor  may  be  a  witness  for  him,  though  a  ver- 
dict in  favor  of  the  defendant  would  obviate  the  chance  of  the  witness' 
being  made  liable  in  a  future  action.  It  may  be  said,  as  in  Johnson  v. 
Harth,  it  is  true,  that  if  the  plaintiffs  recover  against  the  present  defend- 
ant, he  will  have  no  right  of  action  against  the  witness,  because  he  will 
have  sustained  no  damage,  and  therefore,  it  may  be  said  that  the  judg- 
ment will  be  of  benefit  to  the  witness  by  obviating  the  chance  of  his  being 
made  liable  in  a  future  action.  But  this  is  not  the  sort  of  interest  that 
will  disqualify  a  witness  ;  nor  is  it  in  this  sense  the  law  says  the  verdict 
must  be  evidence  for  or  against  him.  It  is  not  like  the  case  of  an  action 
for  the  breach  of  warranty  of  title,  in  which  a  verdict  against  the  defend- 
ant would  of  itself  be  the  foundation  of  an  action  against  his  vendor. 

If  the  present  bill  should  be  dismissed,  that  would  be  no  evidence  for 
or  against  the  witness,  in  a  future  action  to  be  brought  against  him. 
But  if  the  present  plaintiff  should  succeed,  it  is  thought  the  decree  would 
'^5271  '^^  evidence  in  the  event  of  such  an  action*  as  has  been  surmised. 

■^  -^  If  the  plaintiff  succeeds,  he  will  have  no  right  of  action  against 
any  one  in  respect  of  his  present  claim,  because  the  claim  will  be  satisfied. 
The  decree  may  be  evidence,  not  as  a  judgment,  but  as  a  fact  to  make 
out  the  proof  of  his  having  received  satisfaction.  If  he  had  received  satis- 
faction by  agreement  with  the  defendant,  this  would  have  been  equally  a 


*527]  CHARLESTON,   FEBRUARY,    1837.  403 

bar.  If  two  persons  were  suspected  of  a  trespass,  or  proved  to  have 
committed  it,  it  miii-ht  as  well  be  said  that  one  was  an  incomi^eteiit  wit- 
ness for  the  plaintiil"  in  a  suit  a<!;ainst  the  other,  because  if  he  should 
recover  satisfaction  of  the  defendant,  this  would  be  a  bar  to  an  action 
against  any  one  else. 

The  third  and  fourth  grounds  form  in  effect  but  one.  In  addition  to 
what  is  said  in  the  decree,  I  may  observe  that  even  hearsay  evidence  may 
be  admitted  on  a  question  of  pedigree,  and  this  is  in  reality  a  (juesliou 
of  pedigree.  The  original  stock  of  slaves  are  admitted  to  be  all  dead, 
and  the  question  is,  whether  these  now  claimed  are  their  descendants  ? 
And  it  comes  within  the  qualification  expressed  in  Whitelocke  v.  Baker, 
13  Ves.  514,  in  relation  to  the  reception  of  evidence  of  tradition.  It 
must  be  from  persons  having  such  a  connection  with  the  parties,  that  it 
is  natural  and  likely  from  their  domestic  habits,  that  they  are  speaking 
the  truth. 

I  shall  make. a  few  remarks  on  the  last  general  ground.  Admitting 
the  testimony  of  Mr.  Huger,  there  can  be  no  doubt  of  the  credit  due  to 
it.  Then  it  is  certain  that  at  the  death  of  Mrs.  Glover,  there  were  in  the 
possession  of  John  Heyvvard  Glover,  and  at  the  plantation  of  Wright- 
field,  twenty-five  or  thirty  slaves  to  which  the  plaintiffs  are  entitled.  It 
is  objected  that  plaintiffs  have  not  sufficiently  identified  them.  As  is  said 
in  the  decree,  no  others  are  indicated  as  being  those  left  by  Mrs.  Glover. 
If,  as  was  suggested,  Heyward  Glover  obtained  the  slaves  now  claimed 
by  purchase  from  his  mother,  or  from  any  other  person,  or  in  any  other 
manner,  certainly  it  is  to  be  supposed  that  it  was  in  the  defendant's 
power  to  show  this.  The  particular  slaves  claimed  were  named  in  the 
bill,  and  the  defendant  put  upon  her  defence.  Failing  to  do  so,  can  she 
complain  that  all  presumptions  should  be  against  her,  and  that  effect 
should  be  given  to  slight  testimony  for  the  purpose  of  identifying  the 
slaves.  Without  these  circumstances,  I  admit  the  testimony  of  Ferrabee 
would  be  very  slight.  I  cannot  doubt  but  that  justice,  though  not  per- 
haps full  justice,  has  been  done  by  the  decree. 

*In  considering  the  plaintiffs'  grounds  of  appeal, — with  respect  r^cgo 
to  the  claim  for  slaves  who  died  since  the  filing  of  this  bill,  the  '- 
Court  is  of  opinion,  that  the  decision  referred  to  by  the  decree  in  relation 
to  the  measure  of  damage  in  an  action  of  trover,  must  be  confined  to  the 
particular  case.  Certainly  the  general  rule  is  as  contended  for  on  the 
part  of  plaintiffs,  and  supported  by  the  authorities  referred  to,  that  if 
a  bailee  or  pawnee,  who  are  trustees,  wrongfully  refuses  to  deliver  the 
deposit  or  pledge  when  it  is  demanded,  he  thenceforth  keeps  it  at  his 
own  risk,  and  is  liable  for  the  value,  if  it  afterwards  perishes.  See  Story 
on  Bailm.  93,  231,  and  the  authorities  there  referred  to.  The  principle 
seems  to  apply  to  the  present  case;  the  tenant  for  life,  or  volunteers  under 
her,  being  regarded  as  trustees.  The  value  of  these  slaves  must  therefore 
be  a  subject  of  reference.  With  respect  to  the  second  ground,  I  do  not 
perceive  the  evidence  to  charge  the  estate  of  Wilson  Glover  with  the 
cattle.  The  memorandum  said  to  be  in  his  handwriting,  of  their  being 
removed  from  Springfield,  does  furnish  evidence  of  their  being  taken  pos- 
session of  by  him  for  his  own  use.  The  same  memorandum  includes  the 
slaves  removed  at  the  same  time,  which  it  is  agreeil  remained  her  sepa- 
rate estate.     The  maker  of  the  memorandum  states  himself  to  have  taken 


404  sout;h  Carolina  equity  reports.  [*528 

charge  of  all  the  property  specified.  There  is  no  other  evidence  what- 
ever to  charge  Wilson  Glover's  estate  in  opposition  to  the  allegation  of 
the  bill.  A  reference  is  ordered  with  respect  to  the  slaves,  who  died 
since  the  filing  of  the  bill,  but  in  every  other  respect  the  decree  is  affirmed. 


Bona  vs.  Davant. 


The  Commissioner  is  only  entitled  to  commissions  allowed  by  the  fee  bill  for  inves- 
ting and  loaning  out  money  under  the  order  of  Court.  [*528] 

In  this  case,  by  order  of  the  Court,  the  Commissioner  in  Equity  for 
Beaufort,  was  directed  to  receive  the  funds  arising  from  the  sales  for 
partition,  and  to  invest  them  in  stock,  or  loan  them  out  on  proper  secu- 
rities— the  interest  to  be  paid  annually,  and  when  received,  to  be  Invested 
or  loaned  out  in  like  manner.  The  Commissioner  reported  under  this 
order  the  amount  of  principal  received  by  him  and  invested,  on  which  he 
charged  two  and  a-half  per  cent. ;  and  also  the  amount  of  interest  received, 
*R9qT  01^  which  he  charged  ten  per  *cent.  Held,  that  the  Commissioner 
-'  was  not  entitled  to  the  commissions  claimed  for  extra  services,  but 
must  be  restricted  to  the  amount  allowed  by  law  in  his  character  of 
Commissioner. 


Margaret  Lester,  Administratrix  of  Bannister  Lester,  deceased,  vs. 
Hugh  Frazer,  Administrator  of  Benjamin  P.  Frazer,  deceased. 

Where  a  female  infant  before  marriage  entered  into  a  settlement  by  which  she  con- 
veyed her  real  estate  to  the  uses  of  the  marriage  and  the  issue  thereof,  and  died 
during  infancy,  leaving  a  son  who  lived  eleven  years  after  attaining  full  age,  with- 
out calling  the  settlement  in  question,  and  died  leaving  issue  ;  on  a  bill  by  the  cred- 
itors of  the  son  to  charge  the  real  estate  derived  from  the  mother  with  the  payment 
of  his  debts,  on  the  ground,  that  the  settlement  was  void,  being  made  by  the  mother 
while  an  infant: — Hdd,  that  at  most  the  settlement  could  only  he  regarded  as 
voidable,  and  no  election  having  been  made  to  avoid  it,  the  creditors  had  no  right 
to  interfere,  and  the  bill  was  dismissed.  [*537] 

The  question  whether  a  female  infant  is  bound  by  marriage  articles,  by  which  her 
own  real  estate  is  settled  to  the  use  of  the  marriage  discussed,  and  the  English 
cases  considered.  [*538] 

In  England  while  it  has  been  held  that  an  infant  wife  who  had  accepted  a  jointure 
was  barred  of  dower  under  the  stat  Hen.  8,  it  seems  to  be  settled  she  is  not  bound 
by  a  settlement  before  marriage  disposing  of  her  own  real  estate.  [*538] 

Regarding  the  point  settled  in  England,  it  becomes  a  question,  how  far  we  are 
bound  by  it,  considering  the  difference  in  our  circumstances,  habits  and  institu- 
tions. [*539] 

What  contracts  of  an  infant  are  void,  or  voidable  only.  [*540] 

AVhatever  may  be  the  rule  as  to  executory  contracts,  it  is  clear  that  the  executed 
contract  of  an  infant  is  voidable  only,  and  only  the  infant  or  his  legal  representa- 
tives can  avoid  it.  [*541] 

Georgetown,  February  Term,  1836. 

The  following  Circuit  decree  presents  the  case  : — 


*529]  CHARLESTON,    FEBRUARY,    1837.  405 

De  Saussure,  Chancellor.  The  first  question  which  arises  in  this 
case,  is  whether  the  real  estate  of  the  late  Mrs.  Frazer,  the  wife  of  the 
Rev.  Hugh  Frazer,  included  in  her  marriage  settlement,  made  in  1700, 
when  she  was  a  minor,  passed  and  goes  under  tliat  instrument,  and 
according  to  its  provisions ;  or  descended  to  her  son,  the  late  B.  P. 
Frazer,  her  only  child,  and  was  subject  to  his  debts.  It  appears  that 
she  died  when  still  a  minor,  and  her  son  died  in  1829,  leaving  alive  two 
children.  The  doctrine  on  which  this  case  depends  has  been  much  dis- 
cussed, and  a  good  deal  of  difference  of  opinion  has  prevailed  in  the 
Courts.  In  Drury  v.  Drury,  2  Eden,  39 — after  seven  days  argument  of 
the  ablest  counsel  in  England,  it  was  decided  in  1761,  by  the  Lord  Chan- 
cellor, Northingtoii,  among  other  things,  that  the  statute  Hen.  8,  extends 
to  adult  women  only,  and  that  notwithstanding  a  jointure  on  an  infant, 
she  may  waive  the  jointure,  and  elect  to  take  her  dower — also  that  a 
icoman-heing  an  infant,  cannot  by  any  contract  previous  to  Iter  mar- 
riage, bar  herself  of  a  distributiiie  share  of  her  husband^s  personalty 
in  case  of  his  dying  intestate.  The  Lord  Chancellor,  in  his  elaborate 
argument,  stated  (page  50)  the  question  to  be,  whether  sitting  in  a  Court 
of  Equity  he  could  bind  an  infant  to  a  specific  performance  of  an  agree- 
ment, and  bar  her  from  claiming  her  dower  at  law,  and  her  share  of  the 
personal  estate  ;  and  he  came  to  the  conclusion  that  he  could  not ;  for 
he  could  not  be  satisfied  that  the  statute  enabled  infant  girls  to  agree  to 
settlements  to  bind  themselves,  and  t®  bar  them  of  their  legal  provisions — 
dower.  On  an  appeal  to  the  House  of  Lords,  it  was  directed,*  r*cqA 
after  argument  by  very  able  counsel,  that  the  crj)inion  of  the  judges  ^ 
should  be  taken  ou  the  following  question  :  Whether  a  woman  married 
under  the  age  of  twenty-one  years,  having  before  such  marriage  a  jointure 
made  to  her  in  bar  of  dower,  is  thereby  bound  and  barred  of  dower,  within 
the  statute  27  Hen.  8,  ch.  10?  (which  statute  is  of  force  in  this  State.) 
There  were  seven  judges  present  who  delivered  their  opinion  seriatim — 
of  these,  three  were  of  opinion  that  she  would  not  be  bound  and  barred, 
which  was  in  affirmance  of  the  Lord  Chancellor's  decree.  Four  of  the 
judges  were  of  opinion  that  she  would  be  barred,  which  was  against  the 
decree.  Lord  Hardwicke,  sitting  in  his  capacity  of  a  member  of  the 
House  of  Lords,  (having  long  resigned  his  office  as  Chancellor,)  con- 
curred fully  with  the  majority  of  the  judges,  in  the  opinion  that  an  infant, 
having  a  proper  jointure  made,  is  bound  and  barred  by  it.  Lord  Mans- 
field, sitting  as  a  member  of  the  House  of  Lords,  and  of  the  Court,  con- 
curred in  this  opinion,  and  the  decree  was  reversed.  Mr.  Eden,  the 
Reporter,  and  grandson  of  Lord  Northington,  in  a  valuable  note  at  the 
end  of  the  case,  (page  65,)  states  that  great  doubts  were  afterwards 
entertained  of  the  propriety  of  the  decision  of  the  House  of  Lords  ;  and 
that  Lord  Thurlow  is  said  to  have  expressed  himself  strongly  in  favor  of 
Lord  Northington's  opinion.  But  this  did  not  extend  to  the  real  estate 
of  the  infant.  See  18  Ves.  275.  Mr.  Eden  then  goes  on  to  state,  that 
the  result  of  subsequent  authorities  is,  that  an  infant  cannot  be  bound  by 
any  article  entered  into  during  her  minority,  as  to  her  own  real  etitafe; 
which  nothing  but  her  own  act,  after  the  period  of  majority,  can  fetter  or 
affect.  But  that  she  may  be  barred  of  her  own  right  of  dower  by  a  com- 
petent and  certain  provision  by  way  of  a  jointure  ;  and  her  interest  in 
money  may  be  bound  by  agreement  on  marriage,  which  is  for  her  benefit — 
Vol.  I.— 49 


406  SOUTH    CAROLINA    EQUITY'  REPORTS.  [*530 

and  Mr.  Eden  cites  the  decided  cases  on  which  these  conclusions  are 
founded.  Mr.  Atherly,  in  his  Treatise  on  Marriage  Settlements,  page 
28-9,  was  of  opinion  that  the  weight  of  authorities  was,  that  a  female 
infant  has  a  right  to  bind  her  real  estate  by  marriage  settlement.  But 
Chancellor  Kent,  (2d  vol,  Cora  p.  244,)  considers  the  doctrine  settled 
by  Lord  Eldon's  decisions  in  Milnor  v.  Hare  wood,  18  Ves.  259;  and  on 
examining  that  case,  he  says,  (p.  2Y5,)  that  even  Lord  Thurlow  was  of 
opinion  that  a  female  infant  could  not  be  barred  of  her  own  real  estate. 
1  Bro.  C.  C.  106,  115.  By  this  statement,  it  appears  then  to  be  settled 
n:no-\-]  by  the  English  authorities*  that  though  an  infant  may  be  barred 
-"  of  her  dower  in  her  husband's  land  by  a  proper  jointure,  and  of 
her  interest  in  her  personal  estate  by  an  agreement  on  marriage,  she  can- 
not be  bound  as  to  her  oivn  real  estate.  Consequently,  the  settlement  of 
the  real  estate  of  Miss  Porter,  by  her  marriage  settlement,  did  not  bind 
her,  and  she  dying  whilst  an  infant,  never  was  bound.  Yet,  though  I 
take  this  to  be  the  settled  law,  I  may  be  permitted  to  add,  that  by  the 
practice  of  this  State,  it  has  been  usual  to  include  the  real  estate  of 
infants  in  marriage  settlements.  I  am  not  aware  that  these  have  ever 
been  questioned,  or  their  binding  efiicacy  on  the  female  infant,  ever 
decided  on.  It  may  be  worth  considering  whether  it  would  be  proper  to 
disturb  that  practice,  or  bring  its  validity  into  question  ;  until  however, 
a  decision  be  made  by  the  highest  authority,  I  feel  bound  to  adhere  to 
the  doctrine  as  settled  by  the  decided  cases. 

I  must  therefore  consider  the  real  estate  of  the  late  Mrs.  Frazer  (wife 
of  Rev.  Hugh  Frazer),  as  not  bound  by  the  marriage  settlement  made  in 
her  minority,  she  having  died  a  minor,  and  consequently  the  same  never 
having  been  legally  confirmed  by  her.  Her  real  estate,  therefore,  de- 
scended on  her  death,  according  to  law,  one-third  to  her  husband  and 
two-thirds  to  her  infant  son,  B.  P.  Frazer.  Having  come  to  the  conclu- 
sion that  the  real  estate  of  Mrs.  Frazer  descended  at  her  death  according 
to  law,  by  which  her  son  became  entitled  to  two-thirds  thereof,  on  his 
death  his  share  descended  to  his  children,  subject  however  to  his  debts. 

It  is  to  subject  the  lands  descended  to  B.  P.  Frazer,  deceased,  to  the 
payment  of  his  debts,  that  this  bill  is  filed,  and  his  infant  children  made 
parties  to  the  amended  bill.  The  demand  of  the  plaintiff  is  founded  on 
a  note  of  hand,  alleged  to  have  been  signed  by  the  said  B.  P.  Frazer  in 
his  lifetime,  and  made  payable  to  the  late  B.  Lester,  whose  administra- 
trix seeks  payment  thereof  from  the  estate  of  the  said  B.  P.  Frazer. 
The  Rev.  Hugh  Frazer,  who  administered  on  the  estate  of  his  son,  B.  P. 
Frazer,  and  who  is  entitled  to  one-third  of  the  estate  of  his  late  wife,  in 
his  answer  to  the  plaintiff's  bill,  admits  that  he  has  possessed  himself,  as 
administrator,  of  the  personal  estate  of  his  late  son,  which,  however,  was 
inconsiderable,  and  that  he  is  also  possessed  of  the  real  estate  of  his  late 
wife,  called  Clegg's  Point,  to  which,  by  the  present  judgment  of  the  Court, 
his  son  was  entitled  to  two-third  parts.  With  respect  to  the  personal 
^ggcj-j  estate,  Mr.  Frazer,  the  defendant,  *admits  that  he  is  accountable 
for  the  same  to  the  creditors  of  his  son,  Benjamin,  but  that  he  has 
paid  debts,  having  legal  priorities,  to  a  much  larger  amount  than  the 
actual  value  of  said  personal  estate  ;  and  that  with  regard  to  the  real 
e^state  called  Clegg's  Point,  the  same  was  levied  on  and  sold  by  the  sheriff 
of  Georgetown  district,  some  years  ago,  to  wit,  in  the  year  1824,  and 


*532]  CHARLESTON,    FEBRUARY,    1837.  407 

during  the  lifetime  of  his  son  Benjamin,  under  judo-men ts  and  exeeutions 
against  the  said  Benjamin,  and  tliat  lie  became  tlie  purchaser  thereof,  at 
and  for  the  sum  of  three  thousand  dolKars,  and  has  ever  since  held  the 
said  land,  having  paid  the  said  sura,  which  has  gone  in  part  satisfaction 
of  the  numerous  creditors  of  the  said  B  P.  Frazer,  many  of  whom  had 
liens  long  before  the  claim  of  the  plaintiff,  by  note  in  1830,  was  even  in 
existence.  Wherefore,  even  if  the  demand  of  the  plaintiff  had  been 
established,  which  is  denied,  there  remain  no  funds  in  the  hands  of  the 
defendant,  out  of  which  such  demand  could  be  satisfied.  Upon  these 
allegations  in  the  answer,  it  would  be  in  the  course  of  the  Court,  that  a 
reference  should  be  had  before  the  Commissioner,  who  (after  the  i)laintiir 
had  established  her  demand)  should  examine  the  accounts  of  the  admin- 
istrator and  report  thereon.  But  another  question  has  been  raised  by 
the  bill  and  answer,  which  requires  to  be  discussed  and  decided. 

It  is  alleged  by  the  bill,  that  certain  creditors  of  the  said  B.  B.  Frazer, 
having  recovered  judgments  against  him,  levied  upon  a  plantation  on 
Waccamaw,  commonly  called  Clegg's  Point,  as  the  property  of  tlie  said 
Benjamin,  and  at  the  sale. thereof,  by  the  sheriff  of  Georgetown  district, 
divers  of  the  creditors  of  the  said  Benjamin  were  present,  and  ready  and 
willing  to  bid  for  the  said  plantation  as  much  money  as  would  have  amply 
paid  all  the  judgments  against  the  said  Benjamin  P.  Fi'azer,  and  left  the 
personal  estate  free,  to  be  applied  to  the  payment  of  the  other  debts  of 
the  said  Benjamin  ;  at  which  time  and  place  the  said  Hugh  Frazer  under- 
took and  promised  to  the  said  creditors,  that  if  they  would  permit  him 
to  bid  olf  the  said  plantation,  for  a  sum  much  less  than  the  actual  value,, 
which  they  would  have  otherwise  bid,  that  he,  the  said  Hugh  Frazer,  as 
agent  and  trustee  of  the  creditors,  would  sell  the  said  plantation  for  its 
full  and  actual  value,  and  apply  the  proceeds  to  the  paynient  of  their 
debts ;  but  that  the  said  Hugh  Frazer  has  received  the  rents  and  profits 
of  the  said  plantation,  and  has  not  resold  the  same,  or  applied  the  pro- 
ceeds of  the  plantation  to  ^satisfy  the  said  judgments  and  otlier  r:);rqq 
creditors,  and  applied  the  remainder  of  the  assets  in  his  hands  to  '-  ' 
pay  the  debt  due  to  the  deceased  B.  Lester ;  and  the  bill  prayed  relief 
thereon.  The  amended  bill  set  forth  more  fully  the  grounds  of  the  claim, 
and  of  the  complaint  against  the  said  Hugh  Frazer,  and  required  a  full 
answer  to  its  allegations  as  to  the  estate  which  his  son,  the  said  Benjamin 
P.,  was  entitled,  and  insisted  upon  a  discovery  thereof,  and  the  applica- 
tion of  the  same  to  pay  the  debts  of  the  creditors  ;  more  especially  as  he, 
the  said  Hugh,  had  purchased  in  the  lands  at  a  very  low  rate  and  with- 
out competition,  avowedly  on  the  ground  that  he  would  pay  the  creditors 
of  his  said  son  the  full  value  of  the  said  lands. 

The  answer  of  the  Rev.  Hugh  Frazer,  as  administrator  of  B.  P.  Fra- 
zer, admitted  that  the  personal  estate  came  into  his  hands  to  a  small 
amount,  which  had  been  applied  to  pay  debts,  or  to  be  accounted  for. 
That  with  respect  to  the  real  estate,  which  had  originally  belonged  to  his 
wife,  the  late  Mrs.  Frazer,  even  admitting  that  it  descended  to  his  son, 
B.  P.  Frazer  (which  was  questionable  under  the  marriage  settlement),  he, 
the  defendant,  had  become  the  bona  fide  purchaser  thereof;  and  that  with 
respect  to  the  alleged  promises  to  the  creditors,  and  the  breach  thereof, 
and  fraud  practiced  on  them,  the  said  Hugh  Frazer  denied  the  same,  and 
insisted,  that  so  far  from  the  said  allegations  being  true,  he  did  not  know 


408  SOUTH    CAROLINA   EQUITY    REPORTS.  [*o33 

that  any  person  intended  or  wished  to  make  a  bid  for  the  lands,  and  he 
deterred  no  person  from  being  a  purchaser.     That  he  may  have  said  at 
the  sale,  as  he  has  often  said  since,  that  he  would  be  glad  to  make  an 
advantageous  sale  of  Clegg's  Point,  in  order  that  he  might  be  enabled  to 
pay  his  son's  debts  ;  but  that  this  was  uniformly  a  voluntary  declaration, 
and  that  he  believed  the  sum  of  three  thousand  dollars  (at  which  the 
place  purchased  was  knocked  off  to  him)  was  just  that  amount  more  than 
the  interest  of  his  son  therein.     The  defendant  further  answering  stated, 
that  though  he  was  under  no  obligation  to  the  creditors  of  his  deceased 
son,  he  has  constantly  made  efforts  to  make  sale  of  the  plantation  at 
Clegg's  Point,  always  intending  to  appropriate  the  proceeds  thereof  to 
the  payment  of  his  son's  debts  ;  and  although  he  has  not  been  able  to  do 
so,  he  has  since  the  sale  of  the  sheriff,  and  in  anticipation  of  the  sale  of 
the  premises  which  he  hoped  to  make,  paid  and  advanced  to  the  creditors 
of  his  said  son,  fifteen  thousand  dollars,  in  addition  to  the  three  thousand 
dollars  paid  to  the  sheriff,  selecting  such  as  he  deemed  to  be  just. 
^p^r,  ,-|       *The  allegations  and  the  answer  involve  a  serious  question — It 
"^  -^  is  no  less  than  a  charge  of  misrepresentation,  and  an  attempt  to 
hold  to  his  own  use,  at  a  very  low  price,  a  valuable  estate,  which  is  worth 
a  very  large  sum  of  money,  sufficient  to  pay  the  debts  of  his  son  ;  and 
which  might  have  brouglit  its  full  value  if  the  creditors  had  not  been 
lulled  into  a  false  confidence  by  the  assurances  of  the  defendant,  that  he 
would,  if  allowed  to  purchase  the  land  without  competition  at  a  low  rate, 
make  a  re-sale  at  the  full  value,  for  the  benefit  of  the  creditors.     The 
answer  positively  denies  the  allegations,  especially  as  they  relate  to  the 
tract  called  Clegg's  Point.     The  answer  of  a  defendant,  especially  when 
made  by  a  man  of  high  character,  as  in  the  present  case,  is  entitled  to 
great  weight,  and  cannot  be  set  aside  but  by  great  and  preponderating 
evidence.     To  rebut  the  answer,  plaintiff  produced,  at  the  hearing  of  the 
cause,  a  letter  from  the  defendant  to  the  sheriff,  Mr.  Huggins,  dated  6th 
July,  1824,  after  he  had  made  the  purchase  of  the  land  at  three  thousand 
dollars,  in  which  he  states  that  he  had  been  informed  (by  a  letter)  that 
the  sheriff  was  directed  to  advertise  and  re-sell  the  Waccamaw  lands, 
which  orders  he  attributed  to  some  misunderstanding  among  the  parties, 
not  knowing  that  his  sole  view  in  purchasing  the  land  was  to  dispose  of 
the  same  at  some  future  day,  at  their  intrinsic  value,  which  would  more 
than  pay  all  demands  against  his  son  Benjamin  ;  he  adds  that  he  had  had 
a  conversation  with  the  attorneys  and  others,  who  were  all  willing  to  wait 
for  payment.     That  the  sale  was  gone  through  for  form,  for  the  only  bid 
was  made  by  a  friend  of  his  for  three  thousand  dollars,  which  he  promises 
to  pay  speedily.     At  the  hearing  of  the  case,  Mr,  Shaw  was  examined 
for  the  plaintiff,  and  testified  that  he  was  present  at  the  sale  of  one  of 
the  plantations  of  the  lands  of  B.  P.  Frazer,  in  the  summer  (warm  wea- 
ther)— could  not  say  which  of  the  tracts  of  land — he  was  himself  a  judg- 
ment creditor  of  B.  P.  Frazer.     He  hadTarious  conversations  with  Mr. 
Hugh   Frazer  on  the  subject ;  Mr.   Hugh   Frazer  said,  his  object  in 
becoming  the  purchaser  of  his  son's  property  was  to  bid  it  off  for  the 
benefit  of  the  creditors  of  his  son,  and  not  with  any  view  to  benefit  him- 
self, and  he  wished  the  creditors  not  to  interfere  with  his  bidding.     The 
witness  told  Mr.  H.  Frazer  that  any  bid  would  pay  his  demand,  as  he 
was  among  the  earliest  of  the  creditors,  and  therefore  had  no  interest  in 


*534] 


CHARLESTON-,    FEBRUARY,    1837.  409 


entering  into  any  arrangements,  and  his  means  being  smnll,  he  could  not 
bear  delay  ;  Mr.  Frazer  *said  there  were  persons  who  induced  his  r*-Qf; 
son  to  make  improper  purchases,  and  if  he  had  the  control  of  his  L '  ^**^ 
pro])erty,  it  would  enable  him  to  prevent  such  improper  dealings.  The 
witness  attended  the  sale  on  the  same  day  ;  Mr.  Marvin  was  the  only 
person  who  ojiposed  Mr.  Hugh  Frazer  in  bidding — at  each  bidding,  Mr. 
H.  Frazer  told  Mr.  Marvin  he  stood  in  his  own  light,  for  that  he  CMr. 
Frazer)  was  bidding  for  his  benefit,  and  that  of  the  other  creditors  of  his 
son.  This  was  repeated  several  times.  Being  cross-examined,  JNIr.  Shaw 
testified  that  he  was  inclined  to  think  this  was  at  the  sale  of  the  Black 
River  lands,  which  are  distinct  from  Clegg's  Point.  He  does  not  remem- 
ber if  Mr.  Coggeshall  was  present,  as  Marvin's  adviser.  On  being  re- 
examined, Mr.  Shaw  testified  that  he  did  not  remember  whether  the  land 
was  knocked  off  to  Mr.  Frazer  ;  the  general  impression  was,  that  the 
land  did  not  sell  for  half  its  value.  Witness  considered  Mr.  Frazer's 
declarations  as  general,  and  as  applying  to  all  his  son's  property,  and  not 
to  any  particular  land  ;  and  from  Mr.  Frazer's  declarations,  believed  he 
was  acting  for  the  benefit  of  his  creditors,  and  that  his  purchasing  his 
son's  property  made  it  unnecessary  for  the  creditors  to  bid  or  interfere  ; 
don't  remember  whether  Clegg's  Point  was  knocked  olT  to  Mr.  Frazer. 
(The  answer  admitted  it.) 

The  plaintiff's  counsel  produced  the  marriage  settlement  of  Rev.  Hugh 
Frazer  and  Miss  Porter,  March,  1196.  She  was  then  under  age;  her 
son,  B.  P.  Frazer,  was  born  in  1*797  ;  the  mother  died  under  age;  B.  P. 
Frazer  died  in  1829,  leaving  two  children.  The  execution  states  a  levy 
on  plantation,  without  specifying  ;  date  May  15th,  1824.  It  would  be 
a  difficult  thing  to  decide  on  this  part  of  the  case.  The  answer  of  the 
defendant,  a  respectable  clergyman,  is  certainly  at  variance  with  the  letter 
of  6th  of  July,  1824,  (above  cited,)  and  with  the  evidence  of  Mr.  Shaw, 
a  respectable  witness.  Both  the  witnesses  are  entitled  to  credit ;  but 
there  must  be  a  failure  of  recollection  on  one  side  or  the  other,  which  is 
not  to  be  wondered  at,  after  a  lapse  of  eleven  or  twelve  years  ;  yet  the 
letter  of  Mr.  Frazer  seems  to  corroborate  the  recollections  of  Mr.  Shaw. 
Under  these  circumstances,  it  would  be  a  most  painful  duty  to  decide 
this  case  on  that  ground,  and  as  I  think,  it  may  be  properly  decided  ou 
another,  1  willingly  avoid  doing  so.  Mr.  Frazer  states,  that  though  he 
does  not  feel  himself  legally  bound  to  make  a  re-sale  of  the  lands,  and 
especially  of  Clegg's  Point,  yet  he  was  willing,  and  had  offered,  from  a 
sense  *of  justice  to  his  son's  creditors,  to  sell  the  lands  at  their  full  r^co^. 
value,  if  that  could  be  obtained,  and  to  apply  the  proceeds  to  the  ^ 
payment  of  the  just  debts  of  his  son ;  and  that  in  anticipation  of  such 
sales  he  had  actually  paid  just  debts  of  his  son's,  to  the  amount  of  $15,- 
000  over  and  above  the  $3000,  at  which  he  had  bid  off  the  land.  Now, 
if  this  be  correctly  stated,  as  we  have  reason  to  believe,  then  there  is  no 
ground  to  insist  on  the  sale  of  the  land;  for  the  defendant  has  done,  by 
anticipation,  out  of  his  own  funds,  all  that  could  be  required  of  him,  if 
the  case  had  l^een  most  fully  proved  against  him  ;  for  it  is  not  contended 
that  the  lands  and  the  personal  property  together,  exceed  $18,000  in 
value.  It  is  therefore  ordered  and  decreed,  that  it  be  referred  to  the 
Commissioner  to  receive  proofs  of  the  amounts  paid  by  the  Rev.  Hugh 
Frazer,  on  his  son's  debts ;  and  of  the  value  of  the  real  and  personal 


410  SOUTH    CAROLINA    EQUITY   REPORTS.  [*536 

estate  of  the  said  B.  P.  Frazer,  which  came  into  the  hands  of  Mr.  Hugh 
Frazer,  and  to  report  thereon  ;  and  also  to  report  if  any,  and  what 
amount  is  due  to  the  plaintiff. 

From  this  decree,  the  defendant  appealed  on  the  following  grounds  : — 

1.  Because  his  Honor  decided,  "  that  the  real  estate  of  Mrs.  Frazer 
was  not  bound  by  the  marriage  settlement,  made  in  her  minority,  she 
havitig  died  a  minor,  and  consequently,  the  same  never  having  been  le- 
gally confirmed  by  her ;  and  that  her  real  estate,  therefore,  descended  on 
her  death,  according  to  law,  one- third  to  her  husband,  and  two-thirds  to 
her  son  ;"  whereas,  it  is  most  respectfully  submitted,  that  the  settlement 
was  valid,  and  did  not  require  confirmation  ;  or,  in  any  event,  the  cove- 
nant of  Mrs.  Frazer  could  only  be  avoided  by  herself,  or  her  legal  repre- 
sentatives ;  and  the  settlement  should  be  sustained  in  favor  of  the  infant 
defendants,  who  were  purchasers  under  it. 

2.  Because,  if  the  settlement  were  void,  and  two-thirds  of  the  Glegg's 
Point  plantation  vested  in  Benjamin  P.  Frazer,  deceased,  the  allegation  as 
to  the  contract,  made  at  the  sherifi^'s  sale,  was  positively  denied  by  the  de- 
fendant's answer,  which,  it  is  most  respectfully  submitted,  is  perfectly  re- 
concilable with  the  evidence  adduced  at  the  trial,  and  therefore,  no  refer- 
ence was  necessary  as  to  the  payments  made  by  the  defendant. 

3.  Because  the  defendant's  answer  having  denied  any  assets  of  his  in- 
testate, and  no  proof  to  the  contrary  offered,  the  bill  should  have  been 
dismissed. 

^rqw-i       4.  *Because  the  decree  was  made  without  any  evidence  of  a 
-'  debt  due  to  the  plaintiff,  or  assets  in  the  hands  of  the  defendant. 

Dunkin,  for  the  appellant. 

Hunt,  contra. 

Chancellor  Johnston  delivered  the  opinion  of  the  Court. 
The  leading  questions  propounded  in  this  appeal,  and  those  alone  on 
which  the  Court  think  it  necessary  to  express  any  opinion,  are  : — 

1.  Whether  a  female  infant  is  bound  by  marriage  articles,  by  which 
her  own  estate  is  settled  to  the  use  of  the  marriage  ? 

2.  If  not,  whether  any  other  than  herself,  or  her  legal  representatives, 
can  avoid  it? 

They  arise  out  of  marriage  articles  entered  into  between  the  Rev. 
Hugh  Frazer  and  Elizabeth  Clegg  Porter,  in  1796,  the  said  Elizabeth 
then  being  about  sixteen  years  of  age ;  whereby  a  plantation  called 
Clegg's  Point,  of  which  she  was  then  seized,  is  conveyed  to  trustees  to 
the  use,  in  the  event  which  has  happened,  of  the  intended  husband  for 
life,  remainder  to  all  and  singular  the  children  of  the  marriage,  and  to 
"the  lawful  issue  of  any  such  children  as  may  happen  to  be  dead,  equally 
and  impartially  to  be  divided  between  and  among  them,"  &c.  The  mar- 
riage contemplated  was  accordingly  had  and  solemnized,  and  the  only 
\ssue  of  the  marriage  was  a  son,  Benjamin  Porter  Frazer.  Elizabeth,  the 
tv'ife,  died  in  HQI,  being  then  under  the  age  of  twenty-one  years.  Ben- 
jamin, the  son,  died  in  1829,  being  then  upwards  of  thirty-two  years  of 
age,  leaving  two  children,  parties  defendants  in  this  suit.  The  Rev. 
Hugh  Frazer,  the  husband,  is  still  alive,  and  also  a  party  defendant,  the 
administrator  of  Benjamin,  the  son.     The  plaintiff  claims  as  a  creditor 


*537]         CHARLESTON,  FEBRUARY,  1837.  411 

of  Benjamin,  the  son,  who  died  otherwise  insolvent;  and  in  support  of 
the  bill  it  is  insisted  that  the  marriage  articles  are  void,  Elizabeth  the 
wife  being  an  infant  at  the  time  of  their  execution  ;  consequently  on  her 
death,  two-thirds  of  Clegg's  Point  descended  to  the  son  Benjamin,  and 
are  assets  for  the  payment  of  his  debts.  It  may  be  proper  also  to  pre- 
mise that  at  the  time  of  the  marriage,  the  wife  Elizabeth  was,  in  addition 
to  Clegg's  Point,  seized  of  other  real  estate,  and  possessed  of  a  number 
of  slaves,  all  of  which  was  by  the  terms  of  the  articles  secured  to  the 
joint  use  of  husband  and  wife  during  their  joint  *lives,  remainder  r^-oo 
to  the  survivor,  and  on  the  death  of  the  survivor,  remainder  to  L  ^ 
the  children  &c.,  as  before  stated  ;  and  that  nothing  like  fraud  in  obtain- 
ing the  marriage  articles  has  been  charged  or  pretended.  So  that  the 
questions  propounded  are  unmixed  questions  of  law. 

The  question  whether  a  female  infant  is,  or  is  not  bound  by  a  marriage 
settlement  which  disposes  of  her  own  real  estate,  is  one  of  much  interest, 
and  about  which  there  has  been  great  diversity  of  opinion  amongst  the 
most  learned  lawyers  and  judges  of  the  English  Courts.  It  is  one  of 
the  first  impression  here,  and  as  it  is  not  indispensable  to  the  satisfactory 
determination  of  the  case  before  us,  I  propose  only  to  offer  some  general 
views  of  it,  more  with  a  view  to  call  the  attention  of  the  profession  to  it, 
than  to  express  any  settled  opinion  of  my  own. 

In  Drury  v.  Drury,  2  Eden,  39,  th-e  question  was,  whether  an  infant 
wife,  who  had  been  jointured,  was,  or  was  not  barred  of  dower  in  the 
lands  of  her  husband  under  the  statute  of  27  Hen.  8th  ;  and  on  discuss- 
ing that  case,  the  Court  went  very  fully  into  the  general  question,  whether 
a  female  infant  was  or  was  not  bound  by  a  marriage  settlement  disposing 
of  her  real  estate  ?  Lord  Northington,  who  tried  the  cause,  held  that 
she  was  not  bound,  either  by  the  statute,  or  by  the  rules  of  the  common 
law,  and  that  she  might  elect  to  take  either  the  jointure  or  dower.  He 
insists  that  the  policy  of  the  common  law,  which  avoids  the  contracts  of 
infants  in  other  matters,  extends  also  to  marriage  settlements  of  real  es- 
tates by  female  infants.  That  as  an  incident  to  marriage,  the  law  had 
endowed  the  wife  in  the  lands  of  her  husband,  and  conferred  on  the  hus- 
band all  the  chattels  of  the  wife,  regarding  each  as  an  equivalent  for  the 
other  :  thus  superseding  the  necessity  of  any  contract  between  the  hus- 
'  band  and  wife  in  relation  to  their  estates.  The  judgment  was  however 
reversed,  on  an  appeal  to  the  House  of  Lords,  with  the  concurrence  of  a 
majority  of  the  judges,  amongst  whom  were  Lord  Hardvvicke,  Lord 
Mansfield,  and  Wilmot,  J.  On  that  side  of  the  question,  it  is  maintained 
that  although  infants  are  not  generally  bound  by  their  contracts,  they  are 
bound  by  such  as  are  for  their  benefit,  as  for  necessaries  and  the  like. — 
That  a  female  infant  over  twelve  years  is  capable  of  entering  into  the 
contract  of  marriage,  into  the  consideration  of  which,  the  settlement  of 
her  real  estates  enters  very  largely,  and  without  which  the  marriage 
might  never  have  been  had,  and  as  the  marriage  is  *indissoluble,  r*con 
the  settlement  ought  to  be  binding.  See  2  Eden,  64-72,  Wilmot's  '- 
Notes,  184.  And  in  this  opinion  Mr.  Atherly,  in  his  treatise,  on  Mar- 
riage Settlements,  pp.  39,  40,  after  a  full  review  of  the  authorities,  con- 
curs, regarding  the  direct  question  as  not  then  entirely  settled.  It  came 
up  again  incidentally  in  Durnford  v.  Lane,  1  Bro.  C.  C,  106,  when 
Lord   Thurlow  expressed   himself  favorably  towards  the  judgment  of 


412  SOUTH   CAROLINA    EQUITY    REPORTS.  [*539 

Lord  JSrovtliino;ton,  in  Drnry  v  Drurv,  and  in  Milner  v.  Harewood,  18 
Ves.  275,  which  was  tried  in  1811.  Without  entering  into  the  argument, 
or  reviewing  the  cases,  Lord  Eldon  concurred  in  that  opinion,  and  that 
seems  to  be  regarded  as  decisive  of  the  question  there. — 2  Kent's  Cora. 
199. 

If  the  matter  be  regarded  as  definitively  settled  there,  it  becomes  a 
question  how  far  we  are  bound  by  it.  The  Act  of  1112,  while  incorpo- 
rating the  body  of  the  English  common  law  into  our  jurisprudence, 
renders  it  obligatory  no  further  than  it  is  applicable  to  our  own  condition 
and  circumstances ;  and  in  applying  the  rules,  we  must  take  care  that 
they  do  not  violate  some  other  fixed  rule  growing  out  of  our  own  pecu- 
liar habits  and  institutions.  It  would  be  unsafe,  therefore,  implicitly  to 
follow  the  English  Courts,  without  inquiring  whether,  under  the  circum- 
stances existing  here,  a  different  rule  would  not  have  obtained  there. 

Without  adverting  to  the  causes,  which  must  be  obvious  to  every  one 
who  has  considered  the  subject,  it  is  well  ascertained  that  our  females 
marry  at  a  much  earlier  age  than  even  in  England ;  indeed  the  instances 
in  which  females  do  not  marry  before  the  age  of  twenty-one  years,  may 
be  accounted  rare.  The  policy  of  throwing  no  difficulties  in  the  way,  or 
rather  of  encouraging  them,  is  peculiarly  applicable  to  the  sparse  popula- 
tion, and  the  great  facilities  of  obtaining  subsistence  ;  and  into  whatever 
speculations  the  subject  may  lead,  there  can  be  no  question  that  marriage 
settlements,  especially  amongst  the  richer  classes,  enters  very  largely 
into  the  contract  of  marriage,  and  that  any  restraint  upon  them  would 
oppose  an  obstruction. 

In  England,  whilst  personalty  is  scarcely  regarded  at  all,  real  estates 
are  very  highly  estimated,  and  descend  in  the  male  line  :  the  instances  in 
which  the  wife  brings  with  her  real  estate  on  marriage,  are,  therefore, 
rare  ;  and  it  might  well  be  thought  that  it  was  unnecessary  to  break  in 
upon  a  general  rule,  to  provide  for  the  few  cases  which  might  arise,  espe- 


*540] 


cially  as  the  value  of  the  real  *estate  of  the  wife  might  be  regarded 


as  more  than  an  equivalent  for  any  provision  which  the  husband 
might  be  able  to  make  for  her.  Here  it  is  otherwise  ;  real  estates  de- 
scend equally  to  the  males  and  females,  and  the  value  of  slaves,  which 
are  regarded  as  chattels,  and  other  personalty  usually  attached  to  a  well- 
settled  plantation,  may  be  safely  estimated  at  double  the  value  of  the 
realty,  and  in  most  cases  the  portion  of  the  wife  consists  partly  of  both. 
There  is  also  another  diversity.  In  England,  provision  is  usually  made 
for  the  wife  out  of  the  fortune  of  the  husband,  in  consideration  of  the  por- 
tion which  the  wife  brings.  Here  the  object  is  generally  to  secure  to  the 
wife  her  own  fortune,  consisting  of  lands  or  negroes,  or  both.  And  if  a 
female  infant  may  bind  herself  by  a  settlement  of  her  personalty,  (and 
that  she  may  is  universally  conceded,)  to  deny  her  the  power  of  also  dis- 
posing of  her  real  estate,  would  be  to  frame  a  rule  giving  her  the  shadow, 
whilst  the  substance  is  taken  from  her.  The  slaves  and  the  plantation 
are  inseparable ;  one  would  be  comparatively  useless  without  the  other, 
and  the  interest  of  the  wife  would  seem  to  require,  that  she  should  be  left 
to  treat  the  matter  without  restraint.  The  watchfulness  of  parents,  and 
the  care  of  guardians  and  friends,  would  in  general  be  a  sufficient  guard 
against  rash  and  inconsiderate  settlements  on  her  part,  and  the  Courts 


*540] 


CHARLESTON",   FEBRUARY,    1837.  413 


of  justice  would  always  relieve  against  positive  frauds  in  obtaining 
them. 

Tlicre  is  another  consideration.  Instances  of  female  inf\ints  settling 
their  real  estates  on  their  marriage,  must  have  very  frequently  lia])])ened, 
and  the  question  whether  they  are  bound  by  them,  never  has  been  before 
made.  They  have  always  been  treated  as  valid,  and  the  estates  have 
]iasscd  under  them.  Public  opinion  appears  to  have  settled  down  in 
favor  of  their  validity,  and  to  introduce  a  new  order  of  things  might  dis- 
turb the  repose  of  titles  which  have  been  acquired  under  them.  The 
matter  ought  therefore  to  be  well  weighed  before  we  venture  upon  it. 

The  remaining  question  is  one  of  less  difficulty.  "J'he  question  as  to 
what  contracts  of  an  infiint  are  absolutely  void,  or  voidable  only,  is  a  very 
fit  subject  of  a  lecture  or  disputation,  but  I  do  not  perceive  that  we  should 
derive  any  advantage  from  treating  of  it  so  much  at  large  here.  It  is 
already  sufficiently  ascertained  that  there  is  a  class  of  contracts,  (within 
which,  I  propose  to  show  that  this  case  falls,)  which  are  considered  as 
voidable  only,  and  that  the  election  to  avoid  or  abide  by  them,  is  a  per- 
sonal privilege,  of  *vvhieh  no  other  than  the  infant,  or  those  claim-  r:^r  ,^ 
ing  as  legal  representatives,  can  avail  themselves.  L 

Bingham,  in  his  Treatise  on  Infancy,  p.  33,  lays  down  the  rule  that  all 
the  acts  of  an  infant,  capable  of  being  legally  ratified,  are  voidable  only, 
and  that  such  only  are  absolutely  void  as  are  incapable  of  being  legally 
ratified;  and  on  this  principle  it  was  held  in  Zouch  v.  Parsons,  3  Bur. 
1794,  that  the  conveyance  of  an  infant  by  lease  and  release,  was  voidable 
only.  But  Chancellor  Kent  has,  I  think,  vshown  very  clearly  that  the 
rule  is  not  a  certain  test,  and  after  reviewing  the  authorities,  concludes 
with  Chief  Justice  Eyre,  in  Kean  and  Boycott,  2  H.  Black.  511,  that 
when  the  contract  of  an  infant  was  obviously  to  the  prejudice  of  the 
infant,  it  is  void — when,  for  his  benefit,  as  for  necessaries  and  the  like,  it 
is  good  ;  and  when  uncertain  as  to  the  benefit  or  prejudice  of  the  infant, 
is  voidable  only  at  his  election.     2  Kent  Com.  192-3. 

These  rules  apply  obviously  to  executory  contracts,  and  I  cannot  well 
suppose  that  it  ever  yet  entered  into  the  head  of  any  one,  who  considered 
the  subject,  that  the  executed  contract  of  an  infant,  where  he  had  done 
all  that  was  necessary  to  invest  another  according  to  the  forms  of  law, 
with  the  title  and  possession  of  his  estate,  was  absolutely  void.  For 
example  :  an  infant  makes  an  advantageous  bargain  in  the  sale  of  his 
estate,  or  he  gives  it  away,  and  executes  formal  conveyances,  and  the 
purchaser  or  donee  enters  under  it;  himself  and  his  legal  representatives 
are  well  satisfied  to  acquiesce  in  it — can  it  be  that  a  stranger  would  be 
permitted  to  enter  on  the  purchaser  with  impunity,  on  the  ground  that 
be  derived  his  title  from  an  infant  ?  And  yet  this  must  be  the  eifect, 
if  the  conveyance  of  the  infant  is  absolutely  void. 

Atherly,  in  his  treatise  on  Marriage  Settlements,  p.  43,  has,  in  a  note, 
referred  to  Perkins  as  authority  for  a  rule,  which  appears  to  me  to  point 
at  the  principle.  It  is,  "  That  all  gifts,  grants,  or  deeds,  made  l)y  infants, 
which  do  not  take  effect  by  the  delivery  of  the  hand  are  void,  but  all 
gifts,  grants,  or  deeds,  made  by  infants  by  matter  in  deed  or  writing, 
which  do  take  effect  by  delivery  of  his  hand,  are  voidable  by  himself,  his 
heirs,  and  those  who  heir  his  estate."  That  the  infant,  or  his  legal  rep- 
resentative alone,  are  competent  to  avoid  a  voidable  contract,  is  not,  I 


414  SOUTH   CAROLINA   EQUITY    REPORTS.  [*541 

think,  questioned  anywhere.  That  doctrine  is  distinctly  recognized  by 
Lord  EldoQ  in  Mihier  v.  Harewood,  and  in  that  all  the  authorities 
agree. 

^r -c^-|  In  England,  lands  pass  only  by  livery  of  seisin,  and  it  might 
-"J  *^gii  be  questioned  whether  the  conveyance  of  an  infant  by  deed, 
without  livery,  was  void,  or  voidable  only;  but  here  the  delivery  of  the 
deed  is  substituted  for  the  livery  of  seisin,  and  invests  the  purchaser  with 
the  title. 

Here,  Elizabeth  Clegg  Porter,  then  an  infant,  in  contemplation  of  mar- 
riage with  Hugh  Frazer,  conveyed  her  estate  to  trustees  for  certain  uses. 
She  died  during  her  infancy,  her  husband  surviving,  and  supposing  the 
conveyance  to  be  voidable  only,  she  was  never  competent,  nor  did  she 
make  an  election,  whether  to  be  bound  by  it  or  not.  Her  only  issue, 
Benjamin,  lived  to  the  age  of  thirty-two,  eleven  years  after  he  attained 
full  age,  without  calling  the  estate  in  question,  or  making  his  election. 
The  descent  is  now  cast  on  his  infant  children,  who  must  of  course  elect 
to  take  under  the  settlement,  as  otherwise  the  estate  would  be  assets  to 
pay  the  debts  of  their  father.  The  creditors  of  Benjamin,  strangers  to 
the  blood  of  Elizabeth,  very  clearly  have  no  right  to  interfere  in  the 
matter. 

The  plaintifiPs  bill  must  therefore  be  dismissed,  so  far  as  it  seeks  to 
charge  the  settled  estate ;  each  party  to  pay  their  own  costs. 


George  W.  Brown  and  Wife  v.  James  Lindsay,  Administrator  of  John 
Atchison,  and  Others. 

The  husband  having  leased  his  wife's  inheritance  and  died  during  the  term,  the 
administrator,  who  also  acted  under  a  power  of  attorney  from  the  wife,  received 
the  rent  from  the  tenant :  Held,  that  the  wife  was  entitled  to  the  rent  accruing 
after  the  husband's  death.  [*645] 

As  regards  lands  owned  by  the  wife  in  fee,  the  dominion  of  the  husband  continues 
no  longer  than  marriage;  after  that,  she  may  defeat  an  unexpired  lease  of  the 
husband  altogether  by  ousting  the  tenant,  or  claim  the  benefit  of  it.  [*5i')] 

Heard  before  Chancellor  Johnson,  Charleston,  May  Term,  1836. 

The  material  facts  of  this  case  are  as  follows  : — 

John  Atchison  and  his  wife,  being  each  seized  in  fee,  in  equal  undivided 
shares  of  the  livery  stable  and  lots  in  Church  and  Chalmers  streets,  Char- 
leston ;  Atchison,  in  May,  1830,  leased  the  whole  of  the  premises  to 
Edward  Francis,  for  live  years,  at  two  thousand  dollars  a  year. 

In  April,  1833,  Atchison  died  intestate,  leaving  his  wife  and  three 
infant  children  by  a  former  marriage.  James  Lindsay  administered  on 
his  estate.     Atchison's  widow  married  Geo.  W.  Brown. 

The  lease  to  Francis  expired  in  May,  1835  ;  and  Francis  paid  the  rent 
due,  to  the  administrator  of  Atchison,  his  lessor  ;  no  rent  being  ever 
*5431  ^^^^^^^d^d  of  him  (Francis)  by  the  widow  or  her  second  "hus- 
band ;  nor  did  either  of  them  ever  enter,  or  interfere  with  the 
lease,  after  the  death  of  Atchison  ;  unless  that  be  inferred  from  their 
giving  Atchison's  administrator  a  general  power  of  attorney  to  receive 
moneys  due  them. 


*543] 


CHARLESTON,    FEBRUARY,    1837.  415 


Brown  and  wife  having  filed  their  bill  against  the  administrator  and 
children  of  Atchison,  for  a  settlement  of  his  estate,  it  was  referred  to  the 
Commissioner  to  take  the  accounts,  and  ascertain  the  net  distribuiive 
shares  of  the  widow  and  children,  in  the  estate. 

The  Commissioner  reported,  that  Mrs.  Brown  was  entitled  to  two- 
thirds  of  the  rent  which  accrued  after  Atchison's  death — to  wit,  to  half 
of  the  whole  rent  on  account  of  her  ownership  of  one  moiety  of  the  i>rc- 
mises,  and  third  of  the  other  half,  as  widow  and  distributee  of  Atchison. 
To  this  report  the  children  of  Atchison  excepted  :  — 

"1.  Because  John  Atchison,  the  husband  of  Mrs.  Sarah  Atchison, 
(now  Mrs.  Brown,)  was  authorized,  by  law,  to  lease  his  own  moiety  and 
also  his  wife's  moiety  of  the  premises,  to  Edwai-d  Francis ;  and  that  the 
entire  accruing  rent,  for  the  whole  term,  was  distributable  as  assets  of  his 
estate. 

"  2.  Because  the  lease  to  Francis  was  the  property  of  John  Atchison's 
estate,  which  might  perhaps  have  been  defeated  by  entry  by  his  widow, 
on  his  death  ;  but  that  the  right  of  Mrs.  Atchison,  was  no  more  than  a 
right  of  entry,  and  not  a  7'ight  to  the  rent  reserved  by  the  lease.  And 
the  wife  not  having  entered,  or  done  any  act  to  defeat  the  lease,  she  made 
her  election  to  take  one-third  of  the  rent  under  it,  as  a  distributee  of  her 
husband's  estate." 

Johnson,  Chancellor.  The  question  is,  whether  Mrs  Brown  is  entitled 
to  a  moiety  of  the  rents  accruing  after  the  death  of  the  intestate,  or 
whether  they  are  assets  in  the  hands  of  his  administrator. 

There  is  no  question  that  the  wife's  inheritance  in  land  abides  in  her, 
notwithstanding  her  coverture,  and  survives  to  her  on  the  death  of  the 
husband.  The  husband  may,  however,  during  his  life,  use,  alien  or 
charge  the  lands  of  the  wife ;  but,  on  his  death,  these  and  all  other  in- 
cumbrances, fall  off  and  drop  with  his  estate  and  interest  therein.  (Bac. 
Ab.  title  Leases  and  Terms  for  years,  C.  1.) 

It  seems,  however,  that  it  has  been  a  controverted  question,  whether  a 
lease,  made  by  the  husband,  of  the  wife's  lands,  for  a  longer  *term  r^^KA, 
than  his  own  life,  the  wife  surviving,  became  absolutely  void  on  ■- 
his  death,  or  was  only  voidable  at  the  election  of  the  wife. 

Bacon,  in  the  chapter  before  referred  to,  lays  it  down,  that  it  is  good 
for  the  whole  term,  unless  the  wife,  by  some  act  after  the  husband's  death, 
shows  her  dissent  thereto  ;  for  if  she  accepts  rent,  which  became  due  after 
his  death,  the  lease  is  thereby  rendered  absolute  and  unavoidable.  The 
reason  given  is,  that  by  reason  of  the  marriage,  the  wife  loses  altogether 
the  power  of  contracting  or  disposing  of  her  own  possessions  ;  and,  having 
subjected  herself  to  the  will  and  power  of  the  husband,  the  power  of  con- 
tracting about,  and  disposing  of,  her  possession,  devolves  upon  him  ; 
because  no  one  else  has  the  right,  or  power,  to  meddle  therewith  ;  and 
without  such  power,  they  would  be  obliged  to  keep  them  in  their  own 
hands  and  occupation, — which  might,  finally,  prejudice  both.  The  abuse 
of  this  power,  is  guarded  against,  by  permitting  the  wife,  after  his  death, 
to  affirm  or  disaffirm,  his  lease,  as  she  may  find  most  subservient  to  her 
own  interests. 

So,  in  Cruise's  Digest,  vol.  4,  p.  64,  it  is  said  that  such  leases  by  the 
husband  are  not  void,  but  voidable,  at  the  election  of  the  wife.     And 


416  SOUTH   CAROLINA    EQUITY   REPORTS.  [*544 

Chancellor  Kent,  (2  Kent's  Com.  112,)  on  the  authority  of  Mr.  Preston, 
(Essay  on  Abs.  of  Titles,  Vol.  1,  p.  334,  435-6,)  remarks,  that  from  the 
authorities,  when  closely  examined,  it  seems,  that,  according?  to  the  com- 
mon law,  the  husband  has  the  power  of  transferring  the  whole  estate  of 
the  wife ;  and  the  estate  will  be  in  the  alienee  of  the  husband,  subject  to 
the  entry  of  the  wife,  or  her  heirs,  after  the  death  of  the  husband,  which 
entry  is  necessary  to  revest  the  estate.  But  Sergeant  Williams,  in  a  note 
to  Waller  v.  Hill,  (2  Saund.  180,  note  81,)  whilst  he  questions  whether, 
as  a  general  rule,  this  doctrine  is  tenable,  takes  a  distinction  which  is 
very  plausible,  if  not  entirely  sound,  and  is  certainly  more  consonant  to 
the  analogies  of  the  law,  and  has,  by  that  means,  attempted  to  reconcile 
the  cases.  Estates  for  life  being  freehold  estates,  could  only  commence 
in  livery  of  seisin,  and  can  only  be  avoided  by  entry.  But  not  so  in 
leases  for  term  of  years,  where  livery  of  seisin  was  unnecessary.  And, 
therefore,  he  concludes  that  leases  for  life  are  only  voidable,  and  leases 
for  term  of  years  absolutely  void. 

Roper,  in  his  treatise  on  property  arising  from  the  relation  of  husband 
and  wife,  (vol.  1,  page  93,)  seems  to  take  for  granted,  that  notwithstand- 
ing some  cases  to  the  contrary,  a  lease  by  the  husband  alone,  of  the  lands 
of  the  wife,  for  a  term  of  years,  is  absolutely  void  as  to  the  wife  surviving, 
^r .  r -|  *But  this  question  is  wholly  irrelevant  to  the  matter  now  in  issue. 
•^  The  argument  of  the  defendants  is,  that  the  lease  was  voidable 
only  ;  and  that  the  wife  could  avoid  it  only  by  entry,  or,  according  to  the 
laws  of  this  State,  by  suit  at  law  against  the  lessee.  Conceding  this  to 
be  correct,  it  does  not  follow  that  she  is  not  entitled  to  the  rents.  All 
the  authorities  agree  that  where  the  lease  is  voidable  only,  any  act  of  the 
wife,  confirmatory  of  the  lease,  such  as  bringing  an  action  of  waste,  or 
receivivg  the  rents,  Sih&c  i\\Q  death  of  the  husband,  is  evidence  of  the 
election  of  the  wife  to  confirm  the  lease.  It  follows,  therefore,  that  she 
may  receive  the  rents.  A  contrary  rule  would  directly  infringe  the  fun- 
damental principle,  that  a  husband  cannot  alien  the  inheritance  of  the 
wife,  to  her  prejudice  and  against  her  consent,  so  as  to  bind  her  after  his 
death.  If  liis  representative,  and  not  the  wife,  is  entitled  to  the  mesne 
profits,  until  she  sue,  (no  other  entry  is  known  here,)  she  would  be  de- 
prived of  the  rents,  ad  interim. 

I  concur,  therefore,  in  the  view  taken  by  the  Commissioner ;  and  it  is 
ordered  and  decreed  that  his  report  be  confirmed,  and  made  the  judg- 
ment of  the  Court. 

The  infant  children  of  Atchison  appealed  from  this  decision,  on  the 
grounds  stated  in  their  exceptions  taken  to  the  Commissioner's  report. 

H.  A.  De  Saitssure  and  Crafts,  for  appellants. 

Fetigru  and  Lesesne,  conti'a. 

Chancellor  Johnston  delivered  the  opinion  of  the  Court. 

The  only  point  made  by  the  appeal,  relates  to  the  rent  which  accrued 
on  the  widow's  half  of  the  lot,  after  the  death  of  the  husband. 

The  more  convenient  method  will  be  to  consider  this  moiety  as  if  it 
were  a  distinct  parcel  of  land,  owned  entirely  by  the  wife. 

_  The  case,  then,  is  :  a  husband  grants  a  term  out  of  his  wife's  fee,  and 
dies  pending  the  lease,  having  received  the  rent  up  to  his  death.     The 


*545]  CHARLESTON,   FEBRUARY,    1837.  417 

tenant  is  permitted  to  hold  to  the  end  of  the  term,  and  pays  the  residue 
of  the  rent  to  the  husband's  administrator ;  who,  at  the  same  time,  holds 
a  general  power  from  the  widow  to  receive  moneys  due  to  her. 

The  question  is,  whether  the  administrator  can  hold  the  residue  of 
*rent,  thus  received  by  him,  as  assets  of  the  husband,  or  whether  r±-  .^ 
it  belongs  to  his  wife  ?  L   "^ 

The  dominion  which  a  husband  acquires  over  his  wife's  property,  re- 
sults entirely  from  the  contract  between  them.  If  tliey  have  made  an 
express  contract,  lawful  in  its  terms,  that  will  govern.  If,  as  was  the 
case  here,  there  was  no  express  contract  between  them,  the  law  raises  an 
implied  one,  according  to  the  character  of  the  wife's  proi)erty. — t  Yes. 
183;  9  Ves.  iTt.  The  implication  as  to  her  chattels  real  is,  that  the 
husband  may  forfeit  or  dispose  of  them  during  her  life.  If  he  docs  not, 
they  go  absolutely  to  whichever  of  the  two  happens  to  survive  the  other. 
I  mention  this  to  relieve  the  case,  at  once,  from  the  authority  of  Preston. 
He  has  been  quoted  to  show,  that  in  the  case  at  bar,  the  administrator  of 
Atchison  is  entitled  to  the  rents.  But  his  authority  is  a  case  of  the  wife's 
leasehold  estate,  and  decides  nothing  here,  where  the  estate  of  the  wife  is 
a  fee. 

The  implication  of  law,  as  regards  lands  owned  by  the  wife  in  fee,  is, 
that  she  has  granted  the  husband  dominion  over  them  during  the  contin- 
uance of  the  marriage.  When  the  marriage  ceases,  his  control  ceases 
with  it;  the  wife  is  re-invested  with  all  her  original  rights,  and  is  not 
bound  by  any  contract  made  by  him  beyond  the  authority  she  by  marriage 
conferred  on  him. 

If  the  husband  die,  ]iending  a  lease  granted  by  him  out  of  the  wife's 
fee,  the  rights  incident  to  her  fee  immediately  vest  in  her ;  and  she  may 
select  what  mode  she  pleases  for  asserting  them. 

She  may  proceed  against  the  lessee.  He  is  but  the  assignee  of  the 
husband.  And  the  husband  having  acted  under  a  limited  power,  the 
wife  may  avoid  his  act,  so  far  as  it  exceeded  his  authority. 

In  proceeding  against  the  lessee,  she  may  defeat  the  lease  altogether, 
for  the  unexpired  part  of  the  term ;  or  she  may  claim  the  benefit  of  it. 
In  the  latter  case,  while  she  avoids  it  as  to  the  husband,  she  affirms  it  as 
to  the  tenant ;  and  it  becomes,  as  it  were,  a  new  lease  executed  between 
the  tenant  and  herself. 

If  she  treats  the  tenant  as  a  trespasser,  she  defeats  the  lease  altogether  ; 
and  so  far  from  entitling  herself  to  the  rent  reserved  by  it,  as  was  argued, 
destroys  the  rent  by  denying  the  tenure.  The  occupant,  considered  as  a 
trespasser  and  not  as  a  tenant,  is  liable  if  he  detains  possession,  not  for 
rent,  but  for  damages. 

If  she  receives  rent  from  him,  or  sues  him  for  rent  as  a  tenant,  she,  so  far 
as  he  is  concerned,  affirms  the  lease  ;  but  affirms  it  as  her  own. 

*It  has  been  argued,  that  the  wife  cannot  claim  the  rent,  as  r:|<r  ii, 
against  the  husband's  executor,  unless  she  deprives  the  lessee  of  •- 
the  term.  The  argument  seems  to  be,  that  so  long  as  the  tenant  is  per- 
mitted to  enjoy  the  lease,  it  stands  as  the  contract  of  the  husband  who 
made  it,  and  his  executor  is  entitled  to  the  benefit  of  it.  But  the  cases 
quoted  by  the  appellants  themseves,  show  that  this  position  cannot  be 
maintained.     They  say  that  the  wife's  receipt  of  rent,  so  far  from  defeat- 


418  SOUTH    CAROLINA    EQUITY   REPORTS.  [*54T 

ing  the  lease,  as  to  the  tenant,  confirms  him  in  his  term  ;  and  yet  they 
say  that  the  wife  is  entitled  to  the  rent  she  has  received. 

The  affirmation  of  the  contract  as  to  the  tenant,  is  no  affirmation  of  it 
as  to  the  husband,  but  merely  substitutes  the  wife  in  his  place,  as  a  party 
to  it.  If,  instead  of  substituting  her,  it  is  a  confirmation  as  to  the  hus- 
band, and  perpetuates  his  contract  for  the  benefit  of  his  executor,  then 
the  wife  is  accountable  to  him  for  the  rents  she  has  received.  The  con- 
sequence would  seem  to  be  that  she  is  to  be  held  bound  by  the  contract 
to  confirm,  and  at  the  same  time  deprived  of  the  consideration  of  that  con- 
tract. If  the  executor  should  not  see  fit  to  look  to  the  wife  for  what  she  has 
received,  or  she  should  waste  it,  he  might  still  insist  that  inasmuch  as  the 
wife's  confirmation  perpetuated  the  husband's  contract  for  the  husband's 
benefit,  the  very  payment  which  served  to  confirm  the  lease  was  no  discharge 
to  the  tenant ;  and  that  he  still  remained  liable  to  the  executor  ;  a  con- 
sequence equally  absurd  and  unjust. 

In  this  case,  Mr.  Lindsay,  when  he  received  the  rent,  was  not  only 
Atchison's  administrator,  but  also  the  attorney  for  the  widow.  The  act 
of  receiving  may  be  referred  to  either  character.  If  we  refer  it  to  his 
character  of  attorney,  it  is  as  if  the  widow  had  herself  demanded  and 
received  the  rents  from  the  tenant.  In  that  case  she  would,  as  we  have 
seen,  be  entitled  to  them,  as  between  herself  and  the  administrator. 

We  have  stated  what  rights  the  wife  may  exert  as  against  the  tenant. 
If  she  ousts  him,  she  disaffirms  the  contract,  both  as  against  lessor  and 
tenant.  In  that  case  the  tenant  may  look  to  the  lessor's  estate  for 
damages  on  the  covenant.  If  she  claims  rent  from  the  tenant,  she  con- 
firms as  to  him,  but  disaffirms  as  to  the  husband.  In  that  case  the  con- 
tract between  the  husband  and  tenant  is  dissolved,  but  without  laying  a 
foundation  for  damages  on  either  hand. 

But  the  widow  here  did  not  oust  the  tenant ;  and  it  is  contended  that 
*p.isi  ^^^'  Liiidsay  received  the  rent  as  Atchison's  administrator,  *aud 
-J  not  as  her  agent.  Let  us  see  what,  on  principle,  must  be  the 
consequence. 

The  wife,  in  the  case  we  have  just  supposed,  has  permitted  the  lease  to 
stand  as  between  the  lessor  and  tenant :  and  the  tenant  has,  I  presume 
rightfully,  paid  the  rent  to  his  landlord's  representative.  I  suppose  the 
wife  has  lost  her  right  as  against  the  tenant.  He  was  not  to  take  notice 
of  a  claim  never  interposed,  and  being  in  under  the  husband,  and  never 
disturbed,  he  could  neither  aver  against  his  landlord's  title,  nor  resist 
payment. 

But  I  apprehend  the  wife  has  a  good  right  to  disaffirm  the  contract 
against  either  party  to  it.  She  may  do  this  as  against  the  husband, 
although  she  forbore  to  do  it  against  his  tenant. 

It  must  be  borne  in  mind,  that  the  husband  acted  under  a  power 
coupled  with  an  interest,  which  he  derived  from  her.  For  any  act  beyond 
his  interest,  he  must  be  regarded  as  her  agent.  His  representative  is  not 
entitled  to  hold  against  his  principal  what  he  has  received,  by  exceeding 
his  authority,  and  beyond  his  interest. 

The  motion  is  refused. 

Chancellors  Johnson  and  Harper,  concurred. 


*548]         CHARLESTON,  FEBRUARY,  1837.  419 


Wm.  a.  Caldwell,  Administrator  of  George  Chur,  v.  Robert  Giles, 

Assignee. 

A  decree  obtained  by  fraud  may  be  set  aside  on  an  original  bill  for  that  purpose ; 
but  on  a  bill  to  obtain  satisfaction  of  a  former  decree,  the  defendant  in  his  answer 
cannot  avail  himself  of  this  so  as  to  resist  performance    [*548] 

Heard  before  Chancellor  Harper,  Charleston,  Jannary  Term,  1856. 

The  decree  of  the  Chancellor  states  the  question  made  in  this  case  as 
follows : 

"  The  plaintiff's  bill  is  to  obtain  satisfaction  of  a  decree  for  the  pay- 
ment of  $1,488  13,  and  iuter'fest,  formerly  obtained  in  this  Court,  by  his 
intestate,  the  said  George  Chur,  against  the  defendant,  Robert  Giles, 
assignee  of  Thomas  W.  Giles.  There  is  no  question  of  the  fact  of  such 
decree  having  been  obtained,  or  that  it  remains  unsatisfied.  But  the 
defendant,  by  his  answer,  states  many  circumstances  to  show  that  the 
original  demand  on  which  the  decree  was  obtained,  was  unjust  and  fraudu- 
lent. These  were  *evidently  the  same  matters  which  were  urged  r^r  in 
in  defence  in  the  former  cause,  and  cannot  be  taken  into  consider-  '- 
ation  now. 

"  Among  the  rest,  however,  it  is  stated  that  the  decree  itself  was  ob- 
tained by  fraud,  by  the  said  George  Chur's  inducing  the  said  Thomas  W. 
Giles,  who  was  sworn  as  a  witness  in  the  cause,  to  swear  untruly  in  sup- 
port of  his  demand  ;  and  that  for  this  purpose  he  used  various  artifices, 
and  promised  to  share  with  him  the  amount  to  be  recovered.  There  is 
no  question,  but  that  if  a  decree  be  obtained  by  fraud,  it  may  be  set  aside 
on  an  original  bill  for  that  purpose.  The  only  question  is,  whether  the 
defendant  can  avail  himself  of  this  by  his  answer,  so  as  to  resist  the  per- 
formance of  the  decree.     I  am  of  opinion  that  he  cannot." 

The  Court  accordingly  refused  to  hear  the  defendant  on  that  point, 
and  ruled  that  the  plaintiff  was  entitled  to  a  decree.  And  the  defendant 
appeals  on  the  following  ground : 

That  the  Court  ought  not  to  give  relief,  by  giving  active  efficacy  to  a 
decree,  which  the  defendant  alleges  was  obtained  l)y  fraud,  until  it  has 
heard  the  evidence  ;  and  if  the  evidence  supports  the  defence,  tlie  Court 
should  refuse  to  revive  the  decree  on  the  ground  that  the  Court  will  not 
lend  its  aid  to  make  a  fraud  successful. 

Hunt,  for  appellant. 

Peronneau,  Mazyck  and  Finley,  contra. 

Harper,  Chancellor.  The  Court  concur  with  the  Cliancellor,  that  the 
matters  put  in  issue  by  the  answer  are  precisely  the  same  as  those  recorded 
in  the  original  proceeding,  and  cannot  therefore  avail  the  defendant,  by 
the  way  of  answer  to  this  bill.  If  it  can  in  any  event  avail  the  defendant, 
it  can  only  be  on  a  bill  to  set  aside  the  decree  for  the  fraud  complained 
of,  and  that  course  of  proceeding  is  the  only  one  recognized  by  the 
precedents.  ^  Motion  dismissed,  and  the  decree  of  the  Circuit  Court  is 
affirmed. 


420  SOUTH    CAROLINA   EQUITY    REPORTS.  [*549 


Cooper  v.  Administrators  of  Reid. 

A  surviving  partner  winding  up  and  settling  the  affairs  of  the  firm,  is 
not  entitled  to  commissions  unless  stipulated  for  by  contract.  The  Act 
of  1745,  (P.  L.  202-3,)  relates  only  to  trustees  who  have  the  manage- 
ment of  the  estates  of  "  infants  or  minors." 


*550]      *JoHN  H.  Wilson  and  Wife  v.  Maria  Freer,  and  Others. 

Testator  hy  bis  ■will  devised  his  plantation  to  his  son  Charles  in  fee,  but  if  he  should 
die  under  age  and  without  issue,  then  to  be  kept  for  the  use  and  maintenance  of 
his  wife  and  unmarried  daughters,  and  on  marriage  to  be  sold  and  eqmiUy  divi- 
ded between  his  wife  and  surviving  daughters.  Charles  died  under  age,  and  without 
issue  leaving  four  sisters,  the  mother  having  died  before  ;  one  sister  died  shortly- 
after,  unmarried  ;  two  afterwards  married  and  died  leaving  issue,  and  the  last  died 
lately, unmarried  :  IJehl,  that  the  devise  to  Charles  was  a  fee  simple,  defeasible  on 
his  death  under  age  and  without  issue;  that  the  limitation  over  to  the  wife  and 
daughters  was  contingent,  and  must  fail,  because  at  the  event  on  which  it  was 
limited  over  there  was  none  answeriog  the  description  to  take ;  and  that,  on  the 
death  of  Charles,  the  fee  reverted  to  testator's  right  heirs,  and  those  answering 
the  description  of  heirs  at  that  time  take.  ["552] 

Heard  before  Chancellor  De  Saussure,  Charleston,  January  Term, 
1837,  who  pronounced  the  following  decree  : 

William  Stanyarne,  the  testator,  died  on  the  5th  May,  1783,  leaving 
alive  his  wife  Anna,  and  the  following  children  : — his  son  Charles,  and 
his  daughters  Elizabeth,  Mary,  Frances,  and  Anna.  The  widow  of  the 
testator  died  in  1783  or  1784.  The  son  Charles  also  died  soon  after, 
under  age  and  without  issue  ;  then  the  daughter  Frances  died  unmarried. 
Elizabeth  married  John  Wilson,  survived  her  husband,  and  died  in  1804. 
leaving  issue  John,  William,  and  Sarah  Wilson. 

Mary  married  Charles  Freer,  survived  her  husband,  and  died  in  1811, 
leaving  issue  Frances,  Maria,  Charles,  and  John  Freer.  The  sons,  John 
and  Charles,  are  dead,  leaving  vi'ills,  which  have  been  proved,  and  the 
executors  have  qualified. 

The  testator's  last  daughter,  Anna,  died  iu  the  year  1836,  unmarried. 
She  devised  her  estate  to  Maria  A.  Freer. 

By  his  last  will  and  testament,  duly  executed,  William  Stanyarne  de- 
vised his  plantation  on  John's  Island,  to  his  son  Charles,  his  heirs  and 
assigns  for  ever  :  Provided,  that  if  his  son  Charles  should  die  before  he 
attained  the  age  of  21  years,  without  issue  of  his  body  lawfully  begotten, 
then  in  that  case,  the  plantation  so  devised  to  him,  should  be  kept  for  the 
use,  profit  and  maintenance  of  his  (testator's)  wife,  Anna  Stanyarne,  and 
all  his  surviving  children,  or  child,  for  the  use,  profit  and  maintenance  of 
all  his  unmarried  children,  until  the  day  of  marriage.  Then  and  after, 
the  said  plantation  should  be  sold  by  his  executor  and  executors,  and  the 
money  arising  therefrom  should  be  equally  divided  between  tiis  wife  and 
surviving  daughters  or  daughter,  share  and  share  alike,  to  them  and 
their  heirs  for  ever 

The  first  devisee  of  the  land,  Charles,  having  survived  his  father,  the 


*550]         CHARLESTON,  FEBRUARY,  1837.  421 

estate  vested  in  him,  but  he  dying  afterwards  under  age,  and  without 
lawful  issue  of  his  body,  the  devise  to  him  failed  and  the  estate  was 
divested. 

The  estate  continued  to  be  held  and  enjoyed  by  the  surviving  children, 
who  died  successively  in  the  order  above  stated. 

The  daughter  Anna,  who  survived  all  the  rest,  having  died  in   183G, 
unmarried,  the  question  which  now  arises  is,  whether  any  *and  what  r^^r  r -i 
persons  are  entitled  to  the  plantation  in  question,  under  the  will  of  ^ 
the  testator  or  otherwise. 

It  is  certainly  an  obscure  will,  and  it  is  not  easy  to  form  an  opinion 
entirely  satisfactory  to  the  mind.  The  description  of  those  who  are  to 
take  under  the  devise,  does  not  seem  to  apply  to  any  of  the  parties  in 
the  events  which  have  occurred. 

Then  it  is  a  case  of  intestacy ;  and  as  such,  the  estate  is  descendible 
to  those  who  were  the  heirs  at  law,  or  is  distributable  under  the  statute 
of  1791.  On  the  death  of  Charles  Stanyarne,  the  first  devisee,  unmarried 
and  without  issue,  the  devise  to  him  failing,  the  fee  descended  to  the  heirs 
at  law,  to  await  the  contingencies  provided  for  by  the  will.  Tliese  not 
having  occurred,  the  question  recurs,  who  are  those  heirs  ?  Charles,  the 
first  devisee,  died  after  his  mother  and  sister  Frances,  and  before  the 
enactment  of  tli4  statute  of  February,  1791,  which  abolished  the  rights 
of  primogeniture. 

The  estate  then  descended  to  his  sisters,  Mary,  Elizabeth  and  Anna, 
subject  to  be  defeated  if  the  contingencies  had  occurred.  (For  Anna, 
the  survivor,  never  married.)  The  plantation  or  proceeds  of  the  sale 
must  be  divided  into  three  equal  parts,  and  paid  over  to  the  respective 
heirs,  or  devisees  of  the  said  Elizabeth,  Mary  and  Anna;  and  it  is  so 
ordered  and  decreed. 

The  cases  cited  by  the  counsel  on  each  side  were  embarrassing,  as  they 
seemed  to  present  similar  circumstances  ;  but  on  examination,  they  are 
not  found  to  be  identical.  Indeed,  few  cases  under  wills,  and  depending 
on  contingencies,  are  ever  found  to  be  precisely  alike  ;  and  the  variation 
of  a  single  fact,  or  feature  in  the  case,  often  changes  the  right  and  the 
decision. 

From  this  decree,  an  appeal  was  taken  on  the  ground  : — 

That  according  to  the  true  construction  of  the  will  of  William  Stan- 
yai'ne,  the  fee  in  the  plantation  descended,  on  the  death  of  Anna  Stan- 
yarne, unmarried,  to  those  who  were  then  next  of  kin  to  the  testator,  to 
wit :  the  children  of  Mary  Freer,  deceased,  and  of  Elizabeth  Wilson, 
deceased. 

Dunkin,  for  appellant. 

Petigru,  contra. 

Chancellor  Johnson  delivered  the  opinion  of  the  Court. 

When  the  will  of  the  testator  is  properly  analyzed,  it  will  be  found  to 
contain  the  following  dispositions  of  John's  Island  *plantation  : —  r-^icco 
1st.  To  his  son  Charles  in  fee,  but  if  he  should  die  under  twenty-  ^ 
one,  and  without  issue  ;  then,  2dly.  To  be  kept  for  the  use,  profit  and 
maintenance  of  the  testator's  wife,  and  unmarried  children,  until  the  day 
YOL.  I.— 50 


422  SOUTH    CAROLINA   EQUITY    REPORTS.  [*552 

of  their  marriage ;  and  then,  Sclly.  To  be  sold,  and  the  proceeds  divided 
equally  between  his  wife  and  his  surviving  daughters. 

Charles  died  under  twenty-one,  and  without  issue,  leaving  four  sisters, 
Elizabeth,  Mary,  Frances  and  Anna,  surviving  him,  (his  mother  having 
died  before ;)  Frances  died  afterwards,  unmarried,  intestate,  and  without 
issue  ;  Elizabeth  and  Mary  have  died  since,  both  leaving  issue  ;  and  last 
of  all,  Anna  died  unmarried  in  1836. 

It  seems  to  be  conceded  on  all  hands,  that  the  daughter,  Anna,  vs^as 
entitled  to  the  use  and  profits  of  the  plantation  up  to  the  time  of  her 
death,  being  the  only  child  remaining  unmarried,  and  that  the  limitation 
over  to  the  wife  and  surviving  daughters  of  the  testator,  must  fail, 
because  at  the  event  (the  death  of  Anna)  on  which  it  was  limited  over, 
there  was  no  one  in  being,  falling  within  the  description  of  those  entitled 
to  take.  The  devise  to  Charles,  having  failed  also,  the  fee  necessarily 
reverts  to  the  right  heirs  of  the  testator ;  and  the  question  is,  whether 
those  coming  within  that  description  at  the  death  of  Charles,  or  the  death 
of  Anna,  are  entitled  to  take. 

The  devise  to  Charles,  is  in  terms  a  fee  simple,  defeasible  in  the  event 
of  his  dying  under  twenty-one,  and  without  issue,  and  on  his  death  under 
twenty-one,  and  without  issue,  the  fee  necessarily  reverted  to  the  right 
heirs  of  the  testator,  unless  it  vested  in  the  wife  and  daughters,  under  the 
devise  over.  That  it  did  not,  I  think  is  very  clear.  In  Monkhouse  v. 
Holme,  1  Bro.  C.  C.  298,  Lord  Ellenborough  says,  that  when  the  time  is 
not  annexed  to  the  form,  but  to  the  substance  of  the  gift,  the  interest  is 
contingent,  and  the  true  question  always  is,  whether  the  event  on  which 
the  estate  is  limited  over,  is  in  the  nature  of  a  condition,  without  which 
the  testator  would  not  have  them  to  take  :  and  there  is,  perhaps,  no  case 
which  would  better  illustrate  the  rule.  The  devise  over  here,  is  to  the 
wife  and  surviving  daughters  after  the  marriage  of  all  his  daughters,  the 
survivorship  being  the  event,  without  which  it  is  apparent  the  testator 
intended  they  should  not  take.  Their  interest  in  the  fee  was  therefore 
merely  contingent.  The  fee,  as  before  remarked,  vested  in  the  right 
heirs  of  the  testator,  on  the  death  of  Charles ;  and  the  event  on  which  it 
Vi'as  limited  over,  not  having  occurred,  it  still  abides  in  them.  Conse- 
s^rrq-i  *quently,  none  can  take,  but  those  who  answered  the  description 
'  -'  of  heirs  at  that  time.  All  the  sisters  were  then  living  and  were 
entitled  to  the  inheritance  in  common.  On  the  death  of  Frances,  without 
issue,  and  intestate,  afterwards  her  interest  vested  of  course  in  her  sur- 
viving sisters.  The  children  of  Elizabeth  Wilson,  their  heirs,  or  devisees, 
are  therefore  entitled  to  one-third  of  the  estate ;  the  childen  of  Mary, 
their  heirs,  or  devisees,  if  any  of  them  be  dead,  are  entitled  to  one  other 
third  part;  and  Maria  A.  Freer,  to  the  remaining  third,  under  the  devise 
from  Anna.  Such,  I  understand,  is  the  import  of  the  Circuit  decree. 
The  appeal  is  therefore  dismissed. 

Chancellors  Harper  and  Johnston,  concurred. 


*553]  CHARLESTON,    FEBRUARY,    1837.  423 

Wm.  Seabrook  vs.  Rose,  and  Others. 

Bill  by  joint  owners  of  a  steamboat  against  another  joint  owner  and  his  attachine 
creditors,  the  joint  owner,  defendant,  having  been  the  agent  of  the  company,  and 
being  a  balance  due  from  him  to  the  company,  on  which  plaintiffs  claimed  lieu 
on  his  shares  : — Held,  that  the  plaintiff's  as  creditors  in  possession,  were  entitled 
to  the  lien  in  preference  to  the  attaching  creditors.  [*5;'i3] 

The  question  considered  whether  owning  a  ship  employed  in  trade,  by  several  in 
distinct  shares,  constitutes  a  partnership.  Ch.  De  Saussure's  opinion,  that  this 
is  a  partnership,  and  carries  with  it  all  its  legal  incidents.  [*555] 

Heard  before  Chancellor  De  Saussure,  Charleston,  January  Term, 
1836,  who  delivered  the  following  decree  : — 

The  bill  was  filed  by  Win.  Seabrook,  and  others,  joint  owners  of  the 
steamboat  or  steamer  "William  Seabrook,"  to  have  an  account  from 
M'Kenzie,  also  a  joint  owner  of  two  shares  in  said  steamer,  who  acted  as 
the  agent  of  the  company  at  Augusta,  and  was  indebted  to  the  concern 
for  a  balance  alleged  to  be  due  by  hi'm  to  them.  The  bill  states  the  case 
fully,  with  which  a  copy  of  the  agreement  of  the  parties  was  filed.  By 
this  instrument,  each  of  the  subscribers  agreed  to  pay  one  thousand 
dollars  per  share,  for  as  many  shares  as  he  took,  for  the  purpose  of  build- 
ing and  fitting  up  a  steam  packet  for  the  conveyance  of  passengers  and 
freight.  And  it  was  agreed,  "that  no  share  should  be  transferred,  or 
assigned,  without  notice  being  first  given  to  a  majority  of  the  stockholders 
of  the  owner's  intention  to  transfer." 

The  bill  was  taken  j^fo  confesso  as  to  M'Kenzie,  who  was  one  of  the 
joint  owners,  and  also  agent  of  the  company  at  Augusta,  and  who,  it  is 
allowed,  is  indebted  to  the  company  for  moneys  received  in  the  course 
of  the  agency.  He  is  insolvent.  The  creditors  of  M'Kenzie,  and  of 
M'Kenzie  &  Co.,  (which  includes  Merriman,)  ^issued  attachments  r^t^Pi'i 
against  the  property  of  M'Kenzie  as  an  absent  debtor.  L     "^ 

The  answers  of  Messrs.  Rose  and  Bonnell,  the  attaching  creditors, 
insist  upon  their  rights  to  a  priority  under  the  attachments.  They  deny 
that  the  plaintiffs  have  a  right  to  retain  the  amount  of  the  shares  of 
M'Kenzie  in  the  steamboat  "William  Seabrook,"  either  under  the  general 
doctrine  of  partner,  or  as  creditors  in  possession.  On  the  face  of  the 
instrument,  the  contracting  parties  are  to  be  joint  owners  of  the  steamer, 
"The  William  Seabrook,"  according  to  their  respective  shares. 

The  only  feature  in  the  agreement  which  might  vary  the  contract,  is 
the  clause,  that  no  transfer  or  assignment  should  be  made  without  notice 
being  first  given  to  a  majority  of  the  stockholders,  of  the  owner's  inten- 
tion to  transfer.  This  does  not  appear  to  me  to  be  such  an  agreement 
as  would  amount  to  what  is  called  a  limited  copartnership,  (even  if  such 
were  allowed  by  our  laws,)  restraining  the  exercise  of  any  powers  which 
joint  owners  have  over  their  shares.  It  is  a  mere  agreement  to  give 
notice  of  an  intended  assignment.  If  the  part  owner  should  make  such 
transfer  without  notice,  he  may  be  responsible  to  the  other  owners  for 
breach  of  the  contract,  but  the  assignment  would  be  good  as  to  third 
persons.  The  case  then  stands  on  the  general  ground  of  a  joint  owner- 
ship. There  is,  however,  no  proof  of  any  assignment,  and  the  creditors 
of  Mr.  M'Kenzie  are  not  claiming  under  an  assignment,  but  under  attach- 
ments against  an  absent  debtor,  owner  of  certain  shares  in  the  steamer 
Seabrook. 


424  SOUTH    CAROLINA   EQUITY   REPORTS.  [*554 

The  plaintiffs  insist  that  they  are  entitled  to  a  lien  on  the  shares 
owned  by  M'Kenzie,  for  the  alleged  balance  due  by  him  to  them  as  agent 
of  the  joint  owners. 

1.  Ou  the  general  principles  of  copartnership. 

2.  As  creditors  in  possession. 

The  first  may  be  called  a  vexed  question.  The  decisions  by  judges  of 
the  highest  character  have  differed.  In  Doddington  v.  Hallet,  1  Ves. 
497,  the  part  owners  of  a  ship,  filed  their  bill  against  the  representative 
of  a  deceased  partner,  on  the  ground  that  they  had  a  specific  lien  upon 
what  should  be  due  to  the  deceased  partner  for  his  share.  Lord  Hard- 
wicke,  upon  great  deliberation,  decided  that  they  had  such  a  lien,  on 
the  ground  that  a  ship  may  be  the  subject  of  partnership  as  well  as 
anything  else. 

Mr.  Belt,  in  his  supplement  to  the  cases  in  Vesey,  sen.,  p.  491, 
^----j  ^states  that  the  decision,  by  Lord  Hardwicke,  in  Doddington  v. 
■^  Hallet,  that  "part  owners  in  a  ship  are  partners,  and  liable  in 
solido,  for  all  goods  furnished  and  repairs,"  has  been  overruled  on  great 
consideration  by  Lord  Eldon,  in  the  case  Ex  parte  Young,  2  Yesey  & 
Beanies,  p.  242.  And  on  examining  that  case,  it  appears  that  Mr.  Belt 
is  correct  in  so  stating  it. 

The  case  Ux  parte  Young  is  indeed  precisely  the  case  we  are  now  con- 
sidering. The  petitioners  were  part  owners  of  a  ship  with  other  persons, 
two  of  whom  became  bankrupt.  The  bankrupts  were  also  managing 
owners,  and  in  that  character  were  indebted  to  the  petitioners,  and  the 
other  owners  of  the  ship,  £28*7,  on  balance  of  accounts,  for  the  freight 
and  earnings  of  the  ship,  after  taking  credit  for  the  outfit  amounting  to 
£2234,  which  sum  the  bankrupts  had  not  paid,  and  the  other  owners 
were  obliged  to  pay  it.  The  petition  prayed  the  application  of  the  pro- 
ceeds of  the  share  of  the  bankrupts  in  the  ship,  freight,  &c.,  towards 
satisfaction  of  the  sums  due  to  the  petitioners  and  the  other  owners. 

After  an  argument  by  the  ablest  counsel,  Lord  Eldon  stated  that  the 
difficulty  in  the  case  arose  from  the  decision  of  Doddington  and  Hallet, 
by  Lord  Chancellor  Hardwicke,  which  teas  directly  in  point.  Lord 
Eldon  at  first  said  he  doubted,  though  there  was  great  difQculty  in  the 
case,  and  the  inclination  of  his  mind  was  against  the  doctrine  of  Lord 
Hardwicke,  which  he  knew  was  his  most  deliberate  opinion,  after  great 
consideration  ;  and  there  was  no  decree  in  equity  contradicting  that. 
Afterwards,  in  a  few  days,  Lord  Eldon  said,  that  after  great  considera- 
tion, he  mast  decide  against  the  case  of  Doddington  v.  Hallet. 

It  is  exceedingly  embarrassing  to  a  judge,  administering  the  justice  of 
the  country,  to  find  such  able  and  learned  Chancellors  differing  in  opinion 
so  widely,  and  indeed  so  directly  opposite.  With  much  hesitation,  I 
should  feel  myself,  however,  under  such  circumstances,  at  liberty  to  follow 
that  opinion  which,  in  my  judgment,  was  most  consistent  with  sound 
principles  ;  and  it  does  appear  to  me,  that  the  judgment  of  Lord  Hard- 
wicke is  the  most  so,  on  the  point  in  question — for  I  concur  with  him  in 
opinion,  "  That  a  ship  may  be  the  subject  of  partnership  as  well  as  any- 
thing else,  the  hire  and  earnings  thereof  being  proper  subject  for  trade  ; 
and  letting  a  ship  to  freight  as  much  a  trade  as  any  other  ;  then  it  appears 
plainly  to  be  a  partnership  among  them,  and  the  ship  itself  to  be  part  of 
the  subject  thereof." 


*056]  CHARLESTON,    FEBRUARY,    1837.  425 

*The  definition  of  a  partnership  seems  to  inclnde  a  joint  inte-  r^:--,, 
rest  in  this  species  of  property,  as  well  as  any  other  kind,  Mr.  '- 
Carey,  in  his  Treatise  (in  the  Law  Library),  states  that  a  partnershij) 
may  be  g-enerally  defined  to  be  "  a  volnntary  association  of  two  or  more 
individuals  for  the  purpose  of  lawful  trade,  in  which  each  person  is  to 
receive  and  bear  his  proportional  ratio  of  profit  and  loss."  The  interest 
of  each  partner  in  the  partnership  is  his  share  in  the  surplus  after  a  set- 
tlement of  the  co-partnership  accounts  :  and  that  interest  alone  is  liable 
to  the  separate  creditors  of  each  partner — 20  Johns.  Hep.  GIL  It  does 
not  appear  to  me,  I  confess,  that  there  is  any  solid  reason  why  ships 
should  not  be,  as  Lord  Hardwicke  stated,  a  subject  of  co-partnership. 
To  make  that  species  of  property,  and  the  interests  of  different  persons 
in  it,  an  exception  to  the  rule,  and  out  of  the  reach  of  the  rules  and 
principles  applicable  to  other  kinds  of  personal  property  (and  in  some 
cases  even  of  real  property)  held  in  co-partnership,  seems  to  me  only  to 
multiply  distinctions  and  exceptions  in  the  broad  system  of  principles, 
and  to  increase  difficulties  and  litigation. 

I  am  relieved  in  some  measure  from  my  difficulties,  in  this  conflict  of 
authorities  and  ])rinciples,  by  the  American  decision.  In  NicoU  v.  Mum- 
ford,  4  Johns.  Chan.  Rep.  522,  it  was  held  by  the  Chancellor,  professedly 
on  the  later  English  authorities,  that  ship  owners  were  tenants  in  common, 
and  were  not  to  be  considered  as  partners,  not  liable  for  each  other  in 
solido,  nor  entitled  in  the  settlement  of  accounts,  on  the  principle  of 
partnership  ;  the  doctrine  of  Lord  Hardwicke,  in  Doddington  v.  llallet, 
being  considered  as  overruled  by  the  modern  decisions,  and  by  the  uni- 
versal understanding  of  the  commercial  world.  But,  when  (as  Chancel- 
lor Kent  states  in  his  admirable  Commentaries,  3  vol.  p.  40)  the  case  of 
Nicoll  V.  Mumford  came  to  be  examined  in  the  Courts  of  Errors,  in  Xew 
York  (20  Johns.  Rep.  611),  the  doctrine  of  Lord  Hardwicke  was  con- 
sidered by  the  majority  of  the  judges  to  be  the  better  doctrine,  and  they 
decided  accordingly,  and  reversed  the  decree  of  the  Chancellor.  The 
case  of  Lamb  v.  Durant,  in  12  Mass.  Rep.  54,  was  decided  on  the  ground, 
that  vessels  as  well  as  other  property  might  be  held  in  strict  partnership, 
with  all  the  control  in  each  partner  incident  to  commercial  co-})artner- 
ships. 

Even  lands  may  be  made  the  subject  of  co-partnership,  and  sul)ject  to 
the  rules  applicable  to  those  connexions. — (See  3  Kent's  Com.  38,  in 
which  he  cites  various  decisions  which  establish  that.)  *See  II  r*55>T 
Mass.  Rep.  469,  and  2  Munford,  38T  ;  and  Winslow  v.  Chiffelle,  L 
State  Rep.  in  Equity,  25,  (1824,)  which  decided  that  in  case  of  a  mill 
held  in  co-partnership,  that  it  was  subject  to  be  applied  like  other  part- 
nership property.  And  even  Lord  Tenterden  (see  Abbott  on  Shipping, 
81,)  gives  to  the  ownership  of  vessels  one  of  the  essential  attributes  of  a 
partnership.  Chancellor  Kent  (3  v.  38)  considers  those  decisions  as  an 
entire  subversion  of  the  equity  doctrine  now  prevalent  in  England.  This 
is  undoubtedly  true ;  and  I  am  content  to  be  supported  by  Lord  Hard- 
wicke and  the  American  Courts. 

The  result  is,  that  I  am  of  opinion  the  ])laintiffs  are  entitled  to  the 
relief  which  they  seek  by  their  bill,  on  this  ground  ;  and  I  am  inclined  to 
think  also  on  the  ground  of  creditors  in  possession,  as  against  the  attach- 
ing creditors.     It  is  therefore  ordered  and  decreed,  that  it  be  referred  to 


426  SOUTH  CAKOLINA    EQUITY    REPORTS.  [*557 

the  Commissioner  or  Master  to  examine  the  accounts  between  the  par- 
ties, and  to  report  whether  any  sum,  and  how  much,  is  due  by  M'Kenzie, 
as  agent,  or  otherwise,  to  the  co-partnership — and  that  the  two  shares 
held  by  him  in  the  steamer  William  Seabrook,  be  held  liable  for  such 
amount,  and  the  costs  of  the  suit. 

Defendants  appealed  on  the  following  grounds  :  — 

1.  That  by  the  decree,  an  account  is  ordered  to  be  taken  between 
A.  M'Kenzie,  and  the  owners  of  the  William  Seabrook,  as  partners. 
Whereas  in  point  of  fact  there  was  no  agreement  of  partnership. 

2.  That  the  decree  declares  the  attaching  creditors  of  M'Kenzie,  to  be 
entitled  to  no  more  than  the  residuum  that  may  be  coming  to  him  as  a 
partner  in  the  stock  held  by  the  owners  of  the  William  Seabrook,  after 
the  payment  of  all  such  sums  as  he  may  be  indebted  in  to  the  company. 
Whereas,  seeing  that  M'Kenzie  is  a  tenant  in  common  with  Seabrook,  of 
two  shares  in  the  steamboat,  and  that  Rose  has  got  a  lien  on  those  shares 
by  his  attachment,  it  follows  necessarily,  as  a  legal  conclusion,  that  Rose 
is  entitled  to  the  money  for  which  those  shares  may  be  sold,  and  that  if 
any  account  is  to  be  taken,  it  should  be  confined  to  the  earnings  and  dis- 
bursements of  the  boat,  since  the  attachment. 

Petigrii,  for  appellant. 

King,  contra. 

^rf.^-1       *Chancellor  Johnston  delivered  the  opinion  of  the  Court. 

-I  The  Court  does  not  feel  prepared  to  give  an  opinion  on  the 
first  point  discussed  by  the  Chancellor  who  tried  this  cause.  The  ques- 
tion is  not,  really,  as  it  has  often  been  conceived  to  be,  whether  a  ship 
may  be  the  subject  of  partnership  ;  for  no  doubt  any  species  of  property 
whatever,  may  be  held  in  partnership.  But  the  question  is,  whether  a 
ship,  owned  in  distinct  shares  and  employed  in  trade,  is,  as  between  the 
owners,  partnership  property,  or  liable  to  be  so  regarded  by  creditors, 
beyond  certain  specified  limits.  On  this  point  the  Court  gives  no 
opinion,  because  it  is  entirely  satisfied  that  the  plaintiffs  are  entitled,  as 
credi4;ors  in  possession,  to  the  decree  they  have  obtained. 
The  motion  is  dismissed. 

Chancellors  Johnson  and  Harper,  concurred. 


Bank  of  the  United  States,  Bank  of  the  State  of  South  Caro- 
lina, and  the  State  Bank,  v.  Charles  T.  Brown,  and  his  Wife, 

Mrs.   S.  E.  Brown,  and  their  children,  and  Stevens,  Trustee, 

and  Others. 

Husband  being  indebted,  by  deed  expressed  to  be  in  consideration  of  love  and 
ajfection,  settled  a  plantation  and  slaves  on  his  wife.  He  was  then  negotiating  a 
sale  of  a  large  real  and  personal  estate  acquired  by  his  wife,  which  was  afterwards 
made  ;  and  this  deed  was  the  inducement  of  the  wife  to  renounce  her  inheritance 
on  the  sale  of  her  real  estate  :  on  a  bill  by  the  creditors  of  the  husband  to  set 
aside  the  settlement  as  voluntary  and  fraudulent,  and  to  subject  the  property  to 
his  debts: — Ildd,  that  parol  evidence  was  admissible  to  show  that  the  true  con- 


*558]  CHARLESTON,    FEBRUARY,    IS 37.  427 

sideration  of  the  deed  was  the  wife's  renunciation  of  her  inheritance,  an<l  that 
such  consideration  was  sufficient  to  support  the  deed  ajrainst  the  creditors.  [*.')t;'J] 

A  deed  without  any  consideration  at  its  execution  may  be  supported  by  parol  proof 
of  a  subsequent  valuable  consideration,  [^-jij^] 

The  registry  acts  requiring  marriage  settlements  to  be  recorded,  &c.,  apply  only  to 
settlements  founded  on  the  consideration  of  marriage  and  entered  into  before 
marriage,  or  afterwards  in  pursuance  of  articles  before,  and  to  voluntary  con- 
veyances by  the  husband  to  the  wife.  A  settlement  by  the  husband  after  mar- 
riage in  consideration  of  his  wife's  renunciation  of  inheritance  in  her  real  estate, 
need  not  be  recorded  as  a  marriage  settlement.  [*5(Jo] 

And  the  same  reasons  apply  to  and  will  sustain  a  deed  of  a  house  and  lot  purchased 
by  funds  derived  from  the  estate  of  the  wife's  father,  no  provision  having  previ- 
ously been  made  for  her  ;  and  to  another  deed  by  the  husband  settling  other 
slaves  on  her,  expressed  to  be  in  consideration  of  her  renunciation  of  inheritance. 
[*506] 

The  husband  may  not  make  an  unreasonable  settlement  on  his  wife  to  defraud  his 
creditors — a  settlement  of  less  than  one-half  the  value  of  the  fortune  he  acquired 
by  his  wife,  is  not  an  unreasonable  provision.  [*566] 

Heard  at  Charleston,  May  Term,  1835 — before  Chancellor  De  Saus- 
SURE,  who  delivered  the  following  decree  : — 

The  bill  is  filed  in  this  case  by  the  bank  creditors  of  Mr.  Charles  T. 
Brown,  to  set  aside  certain  deeds  and  conveyances  stated  in  the  bill  as 
void  against  creditors,  being  post  nuptial  settlements  made  or  obtained 
by  a  husband  who  was  indebted  at  the  time  ;  and  also,  not  duly  recorded. 

The  first  deed  which  I  shall  notice,  is  among  the  last  in  date,  but  most 
easily  disposed  of — that  of  the  10th  November,  1829,  by  which  Charles 
Brown,  conveyed  to  J.  A.  Keith  and  P.  T.  Keith,  a  plantation  at  Goose 
Creek,  and  forty-one  negroes,  in  consideration  of  natural  love  and  affec- 
tion. The  deed  was  recorded  on  "Ith  December,  1829,  in  the  office  of  the 
Secretary  of  State,  on  15th  December,  1829,  in  Charleston,  office  of 
mesne  conveyance;  and  on  21st  December,  1829,  at  Georgetown.  There 
were  debts  subsisting  against  Mr.  Charles  T.  Brown,  at  that  time.  The 
deed  *\vas  purely  voluntary,  and  this  part  of  the  case  was  properly  r;ic  -  -  q 
abandoned  by  the  counsel,  and  the  property  must  be  subjected  to  ^  "^ 
the  claims  of  the  creditors. 

The  next  is  the  deed  of  the  1st  of  June,  1824,  by  which  Mr.  Benjamin 
Elliott,  the  Commissioner  in  Equity,  conveyed  a  house  and  lot  in  Charles- 
ton, at  the  corner  of  George  and  Anson  streets,  in  consideration  of  $11,- 
000,  to  S.  N.  Stevens,  in  trust,  for  Mrs.  S.  A.  Brown,  during  her  life  to 
her  sole  and  separate  use,  remainder  to  her  children  by  C.  T.  Brown, 
and  their  heirs.  This  deed  was  recorded  in  the  office  of  mesne  convey- 
ance, on  the  16th  of  July,  1824.  If  this  be  a  valid  deed,  it  will  protect 
the  property  in  question,  from  the  claims  of  plaintiffs.  That  depends 
upon  whether  it  is  to  be  considered  a  marriage  settlement.  For  if  it  is, 
it  cannot  be  sustained,  for  it  was  not  recorded  according  to  the  statutes 
requiring  and  regulating  the  record  of  marriage  settlements.  The  deed 
vras  not  made  by  the  husband.  The  property  never  was  vested  in  him. 
It  was  bought  and  paid  for  by  the  money  of  Mrs.  Brown  in  the  hands  of 
the  administrator  of  the  estate,  who  gave  it  according  to  his  testimony, 
expressly  to  pay  for  the  house  and  lot,  and  to  take  the  conveyance  to  a 
trustee  for  the  wife  and  children.  The  administrator  was  not  bound  to 
pay  the  money  to  the  husband  without  a  settlement,  and  if,  instead  of  re- 
quiring a  settlement,  he  laid  the  money  out  in  land  for  the  lady  and  her 


428  SOUTH    CAROLINA    EQUITY    REPORTS.  [*5u9 

children,  it  would  liave  been  ,Q,-ood  and  not  subject  to  the  claims  of  the 
husband,  or  his  creditors.  This  was  done  by  the  Court  in  Price  and 
White,  Carolina  Law  Jour.,  297.  It  appears  to  me,  therefore,  that  this 
deed  must  be  sustained,  and  tlie  property  held  for  Mrs.  Brown  and  her 
children,  not  subject  to  the  debts  of  the  husband. 

The  next  deed  is  that  of  the  19th  of  January,  1825,  executed  by 
Charles  T.  Brown  to  trustees,  by  which,  in  consideration  of  love  and  af- 
fection, he  conveyed  to  them  Sandy  Island  plantation  and  forty  negroes, 
in  trust,  for  his  wife  for  life,  to  her  sole  and  separate  use,  remainder  to 
her  children  by  Mr.  Brown,  and  their  heirs. 

It  was  contended  for  the  defendants,  that  this  was  not  a  marriage  set- 
tlement :  and  it  was  important  to  insist  on  that,  because,  if  it  should  be 
considered  a  marriage  settlement,  it  was  not  recorded  according  to  law; 
for  it  was  recorded  in  the  office  of  mesne  conveyances  at  Georgetown 
alone.  An  attempt  was  made  to  supply  this  defect  by  proceedings  in 
Court,  which  were  stated.  The  deed  however,  acquired  no  additional 
strength  by  these  proceedings,  and  must  be  decided  upon  its  own  merits. 
*'=iRni  *"'"*'  ^PPsars  to  me,  to  come  clearly  within  the  statutes,  and  can- 
-■  not  be  sustained.  It  preceded  the  renunciation  of  her  inheritance 
by  Mrs,  Brown,  to  her  own  large  real' estate,  and  cannot,  I  think,  be  made 
to  come  within  the  idea  of  a  purchase,  even  with  the  aid  given  to  the 
case  by  the  evidence,  and  by  the  powerful  argument  of  counsel. 

I  would  willingly  protect  this  lady  and  her  children  if  I  could,  as  she 
carried  so  large  an  estate  in  marriage  to  her  husband.  But  the  laws,  for 
wise  reasons,  prescribe  the  course  which  should  be  pursued  to  make 
family  arrangements,  and  to  secure  their  legal  authenticity  without  pre- 
judice to  third  persons  and  creditors.  If  these  regulations  are  neglected, 
and  injury  results  to  the  family,  it  is  the  fault  of  those  who  ought  to  have 
interposed  and  acted  more  cautiously.  The  conveyance  was  in  consider- 
ation of  love  and  affection,  and  Mr.  Brown  was  then  largely  indebted, 
and  no  proof  that  the  money  of  the  estate  was  applied  to  pay  for  the 
property. 

I  am  of  opinion  that  this  property  must,  according  to  the  decided 
cases,  be  subjected  to  the  demands  of  the  creditors.  The  decision  in 
Prescott  and  Hubbell,(a)  went  very  far,  and  is  with  difficulty,  reconciled 
to  other  decisions,  and  does  not  conclude  this  case. 

The  next  deed  is  of  the  date  of  Tth  of  February,  1826,  by  which 
Robert  Heriot,  the  Commissioner  in  Eciuity,  conveys  to  J,  A.  Keith, 
and  J.  T.  Keith,  twenty-nine  negroes,  for  the  consideration  of  $10,017, 
in  trust,  for  the  use  of  Mrs.  Brown  and  her  children.  This  deed  recites, 
that  Mrs.  Brown  had  renounced  her  inheritance  in  her  real  estate,  and 
her  husband  got  the  benefit  of  it :  That  these  negroes  were  bought  with 
the  funds  of  her  father's  estate,  and  she  was  entitled  to  this  provision,  as 
a  purchaser.  This  is  a  difficult  part  of  the  case.  If  we  consider  the 
deed  as  a  marriage  settlement,  then  not  being  recorded,  according  to  the 
statute  of  1823,  it  would  be  void.  It  appears  to  me  however,  to  have 
been  a  purchase,  in  consideration  of  the  wife's  renunciation  of  her  inheri- 
tance in  real  estate  of  large  value.  The  property  in  question,  never  was 
vested  in  Mr.  Brown,  but  passed  directly  from  Mr.  Heriot,  the  grantor, 

(a)  Not  reported. 


*560]  CHARLESTON,    FEBRUARY,    1837.  429 

to  the  trustees,  for  Mrs.  Brown;  and  the  prcsnm])tion,  that  it  was  paid 
for  out  of  the  estate  of  Mrs.  Brown,  founded  on  the  state  of  thing\s,  and 
on  the  want  of  private  funds  by  Mr.  l^rown,  and  on  the  evidence,  satis-. 
fies  my  mind.  It  appears  to  me  therefore,  though  doubtfully,  tliat  this 
deed  is  valid  as  a  purchase,  and  must  be  sustained  against  the  cUiims  of 
creditors. 

*It  is  therefore  ordered  and  decreed,  that  so  much  of  the  bill  rH.r/.i 
of  complaint  as  seeks  to  set  aside  the  conveyance  of  the  1st  of  l 
June,  1824,  for  the  house  and  lot  in  Charleston,  and  to  subject  tlie  same 
to  the  claims  and  liens  of  creditors  of  Charles  T.  Brown  ;  and  so  much 
of  the  bill  as  seeks  to  set  aside  the  conveyance  of  the  Ttli  of  February, 
1826,  for  twenty-nine  slaves,  and  to  subject  the  same  to  said  creditors,  be 
dismissed. 

It  is  further  ordered  and  decreed,  that  the  property  and  estates  com- 
prehended in  the  deeds  of  the  19th  of  January,  1825,  to  wit,  Sandy  Is- 
land and  forty  slaves;  and  in  the  deed  of  10th  of  November,  1829,  to 
wit,  the  Goose  Creek  plantation,  and  forty-one  slaves,  be,  and  are  hereby 
subjected  to  the  creditors  of  said  Charles  T.  Brown,  according  to  their 
legal  liens  ;  and  that  the  same  be  sold  to  satisfy  the  said  debts,  at  the 
next  sale  day,  or  at  such  times  and  places,  and  on  such  terms,  as  the 
Court  may  direct,  under  any  arrangement  made  between  the  parties. — 
Costs  to  be  paid  by  defendants. 

From  so  much  of  this  decree  as  subjects  Sandy  Island  and  negroes  to 
the  creditors  of  Brown,  the  defendants,  trustees  for  the  wife  and  children, 
appeal,  and  hope  the  same  may  be  reversed,  for  the  following,  among 
other  reasons  : — 

1.  That  the  said  deed  is  not,  in  any  sense  of  the  term,  a  marriage  set- 
tlement, but  a  purchase  by  the  husband  of  the  wife's  inheritance. 

2.  That  it  was  competent  for  the  defendants  to  prove  a  consideration 
for  the  said  deed,  beyond  the  consideration  stated  in  the  deed  itself;  and 
that  tlie  evidence  is  sufficient  to  establish  that  the  said  deed  was  the  con- 
sideration for  Mrs.  Brown's  release  of  her  inheritance.  That  the  consid- 
eration thus  received  by  Mrs.  Brown  was  reasonable,  and  no  injury  was 
done  to  the  creditors  of  Mr.  Brown,  as  they  have  had  the  benelit  of  the 
large  fortune  which  Mr.  Brown  acquired  by  marriage. 

The  [)laintiffs  likewise  appeal  from  that  part  of  the  decree  which  dis- 
misses so  much  of  their  bill  as  seeks  to  set  aside  the  settlement  of  a 
house  and  lot  of  land  in  Charleston,  contained  in  the  deed  of  1st  of  June, 
1824  ;  and  the  settlement  of  twenty-nine  slaves,  contained  in  the  deed  of 
"Ith  of  February,  1826,  and  to  subject  the  said  land  and  negroes  to  the 
plaintiifs'  demand  ;  and  they  move  that  such  part  of  said  decree  may  be 
reversed,  and  the  said  *land  and  negroes  be  ordered  to  be  sold  for  pxccg.^ 
the  payment  of  the  debts  to  plaintiffs,  on  the  following  grounds : —  L 

1.  That  the  said  land  and  slaves  were  purchased  with  the  funds  of  de- 
fendant Charles  T.  Brown,  and  the  settlements  were  therefore,  without 
any  valuable  or  sufficient  consideration  to  support  the  same  ;  and  having 
been  made  after  his  indebtedness  to  the  plaintiff's  had  commenced,  are 
fraudulent  and  void. 

2.  That  the  settlements  embodied  in  the  said  deeds  are  also  void,  for 
not  being  duly  recorded  in  the  offices  of  the  Secretary  of  State  and  Reg- 


430  SOUTH   CAROLINA    EQUITY   REPORTS.  [*562 

ister  of  Mesne  Conveyances,  conformably  to  the  provisions  of  the  Acts  of 
the  General  Assembly,  in  such  case  made  and  provided. 

3.  That  the  decree,  in  the  particulars  above  mentioned,  is  in  other  re- 
spects contrary  to  law  and  equity,  and  good  conscience. 

Eggleston  and  Frost,  for  defendants. 

De  Saussure  and  Bailey,  for  plaintiffs. 

Chancellor  Johnston  delivered  the  opinion  of  the  Court. 

The  grounds  of  the  defendants'  appeal  grew  out  of  a  deed  executed  by 
the  defendant,  Brown,  on  the  19th  of  January,  1825,  by  which  he  con- 
veyed to  trustees,  for  the  use  of  his  wife,  a  plantation  on  Sandy  Island, 
and  forty  slaves.  The  consideration  expressed  is  natural  love  and  affec- 
tion, but  the  proof  is  very  abundant  that  Brown  was,  at  the  time,  nego- 
tiating the  sale  of  a  large  real  and  personal  estate,  which  he  afterwards 
sold  for  $120,000,  and  which  he  had  acquired  by  the  wife  ;  and  that  the 
deed  above-mentioned,  was  the  inducement  to  Mrs.  Brown  to  join  in  the 
conveyance  of  the  land  to  Col.  Hunt,  and  renounce  her  inheritance,  and 
that  this  was  the  true  consideration. 

As  a  mere  voluntary  conveyance  for  the  use  of  the  wife,  the  deed 
would  necessarily  be  void  as  to  the  creditors  of  Brown  ;  and  regarded  as 
a  marriage  settlement,  it  was  equally  void,  not  having  iDcen  recorded  in 
the  office  of  the  Secretary  of  State  ;  the  questions  then  arise  : — 

1.  Whether  parol  evidence  was  admissible,  to  show  that  Mrs.  Brown's 
renunciation  of  her  inheritance  entered  into  the  consideration  of  the  deed, 
and  whether  that  is  a  sufficient  consideration  to  support  the  deed  against 
creditors. 

^rpo-1       *2.  If  the  consideration  be  valuable,  whether  the  deed  ought  to 
-I  have  been  recorded  in  the  office  of  the  Secretary  of  State,  as   a 
marriage  settlement. 

The  general  rule  is,  that  parol  evidence  is  inadmissible,  to  add  "to,  or 
vary  the  terms  of  a  deed,  or  to  show  any  circumstances  inconsistent  with 
it;  and  if  the  converse  of  the  rule  be  true,  it  follows,  that  anything  may 
be  admitted  which  is  consistent  with  it.  On  this  principle,  parol  evi- 
dence has  been  admitted  to  supply  a  consideration,  where  none  has  been 
expressed  in  the  deed,  and  to  show  a  particular  consideration  where  that 
expressed  was  general,  as  for  "  divers  good  causes  and  considerations." 
1  Phil.  481-2-3.  And  I  cannot  perceive  why,  if  there  are  two  consider- 
ations existing  at  the  time  of  the  execution  of  the  deed,  one  only  of  which 
is  expressed,  parol  should  be  admitted  to  show  the  other  and  better.  So 
far  from  tending  to  contradict  the  deed,  its  object  is  to  support  it,  and 
must  necessarily  be  consistent  with  it — the  addition  of  a  circumstance 
necessary  to  give  it  effect.  And  it  strikes  me,  that  this  is  the  more  rea- 
sonable where  it  is  a  third  party,  a  stranger,  who  seeks  to  avoid  the  deed 
on  account  of  the  want  of  consideration.  The  case  does  not  rest,  how- 
ever, entirely  on  this  question,  and  it  is  not  necessary  to  decide  it.  The 
true  consideration  of  the  renunciation  of  Mrs.  Brown's  inheritance  in  her 
real  estate,  was  subsequent  to  the  execution  of  the  deed  of  19th  January, 
1825,  and  I  take  it  as  well  settled,  that  a  deed  void  for  want  of  consider- 
ation, may  be  supported  by  parol  proof  of  a  subsequent  valuable  con- 
sideration.    In  this,  there  is  clearly  nothing  inconsistent  with  the  deed, 


*563] 


CHARLESTON,   FEBRUARY,    1837.  431 


but  the  proof  of  a  substantive  independent  fact,  arisinc;  subsequently  to 
its  execution.  This  point  is  expressly  relied  on  in  M'Dowall  iiml  Black 
V.  Gist,  decided  not  lonjz:  since  in  Columbia,  and  to  which  I  refer  for  the 
argument  Atherly,  in  his  treatise  on  Marriage  Settlements,  i)age  159, 
iu  speaking  of  the  consideration  necessary  to  supi)ort  settlements  after 
marriage,  says  that  giving  up  an  interest  in  the  settler's  estate  will  be 
a  sufficient  consideration,  although  it  is  not  expressly  relin((uished  in 
consideration  of  the  settlements,  and  although  not  relinquished  by  the 
same  deed,  or  another  at  the  same  time  ;  for  if  it  is  done  about  the  same 
time,  so  that  it  be  reasonably  presumed  to  be  part  of  the  same  transaction, 
it  would  be  presumed  so,  and  looked  upon  as  the  consideration  which 
produced  the  settlement. 

Jfow,  had  the  settlement  preceded  the  relinquishment  of  Mrs.  r*K/>  < 
*Brown's  inheritance,  independent  of  the  parol  proof,  these  deeds  ^ 
furnish  very  strong  intrinsic  evidence  of  the  true  consideration.  There 
is  another  principle  on  which  this  deed  may  be  supported.  The  plain- 
tiffs come  here  to  be  relieved  against  an  advantage  which  the  defendants 
possessed  at  law,  on  the  ground  that  the  consideration  being  love  and 
affection  only,  the  deed  is  void  as  to  creditors.  Now,  the  proof  is  very 
conclusive,  that  Mrs.  Brown  renounced  her  inheritance  on  the  faith  that 
a  provision  had  been  made  for  her  by  this  deed.  The  witness.  Smith, 
says  expressly,  that  she  would  not  have  renounced  but  on  that  assurance  ; 
and  if  evidence  of  this  fact  is  admissible,  it  is  very  clear  that  the  right 
and  justice  of  the  cause  is  with  her.  In  the  Marquis  of  Towushend  i\ 
Stangroom,  6  Yes.  328,  which  was  a  bill  for  the  specific  performance  of 
an  agreement  to  lease  a  farm.  Lord  Eldon  admitted  parol  evidence,  to 
show  that  the  written  agreement  was  not  according  to  the  terms 
stipulated  in  the  treaty ;  and  he  observes,  that  if  parol  evidence  is  to 
be  excluded  in  equity  because  it  is  at  law,  all  the  cases  of  hard  bargains, 
unconscionable  agreements,  and  agreements  entered  into  by  mistake  or 
surprise,  must  be  struck  out :  and  he  refers  to  a  MS.  note  of  Lord 
Hardwicke,  in  the  case  of  Rich  v.  Jackson,  in  which  his  lordship  says 
that  he  had  often  known  parol  evidence  in  cases  where  an  attempt  had  been 
made  to  obtain  by  a  decree  of  the  Court  a  further  security  or  more  ample 
interest  than  the  party  was  in,  by  the  possession  of  the  paper  itself,  to  show 
that  the  demand  was  fraudulent  and  unfair — and  in  which  relief  had  been 
refused  on  that  ground.  This  is  exactly  that  case.  The  ])laintiirs  come 
here  to  ask  the  Court  to  set  aside  the  deed  of  the  19th  January,  1825, 
that  they  may  be  let  in  as  creditors  of  Brown.  The  effect  must  be  to 
deprive  Mrs.  Brown  of  the  equivalent  for  which  she  stipulated  when  she 
release  her  inheritance  in  a  very  ample  estate,  and  reduced  her  to  a  state 
of  comparative  want.     I  think  she  is  protected  by  the  principle. 

In  Prescott  v.  Hubbell,(a)  decided  in  this  Court  in  182t,  it  was  held 
that  a  conveyance  by  the  husband  to  the  use  of  the  wife,  iu  consideration 
of  her  renouncing  her  dower  in  lands  which  he  had  sold,  was  sufficient  to 
support  the  conveyance  against  the  creditors  of  the  husband.  So  in 
M'Meekin  v.  Edmonds,  1  Hill  Ch.  288,  where  the  land  of  the  husband 
was  sold  by  the  sheriff  under  execution,  and  the  purchaser,  a  stranger, 
conveyed  to  trustees  *for  the  use  of  the  wife,  the  husband  having  r^sgK 
paid  the  principal  part  of  the  purchase-money,  it  was  held  that  '- 

(a)  Not  reported. 


432  SOUTH   CAROLINA    EQUITY    REPORTS.  [*505 

the  conveyance  was  good  against  the  creditors  of  the  husband ;  and  it 
follows,  that  the  renunciation  of  the  wife's  inheritance  in  her  own  lands, 
and  of  which  no  power  can  deprive  her  but  with  her  own  consent,  must 
be  equally  valid.  Our  registry  Act  requires  "  all  marriage  settlements" 
should  be  recorded  in  the  office  of  the  Secretary  of  State,  within  a  limited 
time  after  they  are  executed,  and  declares  that  they  shall  be  void  unless 
they  are  so  recorded.  But  there  is  some  diversity  of  opinion  as  to  what 
constitutes  a  marriage  settlement,  within  the  meaning  of  the  Act.  Prima 
facie,  the  terms  obviously  import  a  settlement  founded  on  the  considera- 
tion of  marriage  ;  and  could  not,  therefore,  directly  apply  to  settlements 
entered  into  after  the  marriage,  unless  made  in  pursuance  of  articles  pre- 
viously entered  into  ;  but  in  Price  v.  White,  Car.  Law  Journal,  29*7,  it 
was  held  that  a  voluntary  settlement  made  by  the  husband  after  marriage 
to  the  use  of  his  wife,  was  within  the  mischiefs  contemplated  by  the  statute, 
and  was  void  unless  so  recorded.  That,  I  then  and  still  think,  was  going 
quite  far  enough, — extending  the  construction  of  the  statute  to  its  utmost 
limits.  It  never  could  have  been  intended  to  apply  to  all  conveyances 
for  the  use  of  a  married  woman.  If  a  parent  thinks  proper  to  convey  or 
devise  an  estate  to  the  separate  use  of  his  married  daughters,  with  what 
propriety  is  that  denominated  a  marriage  settlement  ?  Marriage  does 
not  enter  into  the  consideration;  and  did  the  Legislature  in  framing  the 
Act,  contemplate  this  state  of  things,  and  intend  to  provide  for  it  under 
the  term  "marriage  settlement?"  I  think  not — they  might,  and  would 
have  employed  more  appropriate  terms.  So,  if  a  stranger  convey  to  the 
use  of  a  married  woman,  or  if  she  invest  her  pin-money,  or  her  other 
separate  funds  in  lands,  and  procure  them  to  be  conveyed  to  trustees  to 
her  separate  use,  what  could  be  more  foreign  than  the  terms  "  marriage 
settlement,"  applied  to  these  transactions  ?  But  the  cases  of  Prescott  v. 
Hubbell,  and  M'Meekin  v.  Edmonds,  are  direct  authorities  on  the  point. 
They  are  not  marriage  settlements  within  the  meaning  of  the  Act;  and  in 
what  do  these  cases  differ  from  the  case  where  the  wife  acquires  an  estate 
in  exchange  for  her  inheritance,  whether  she  obtains  it  from  her  husband 
or  a  stranger  ? 

I  conclude,  therefore,  that  no  settlement  or  conveyance  falls  within  the 
*5661  P*^^'^^^^  ^^  ^^^6  -^ct,  except  such  as  are  founded  on  the  *consider- 
-'  ation  of  marriage,  and  entered  into  before  the  marriage,  or  after- 
wards, in  pursuance  of  previous  articles,  or  voluntary  conveyances  by  the 
husband  to  the  use  of  the  wife,  afrer  the  marriage. 

The  grounds  of  appeal,  on  the  part  of  the  plaintiffs,  are  entirely  covered 
by  the  foregoing  observations.  William  S.  Smith,  the  administrator  of 
George  Smith,  the  father  of  Mrs.  Brown,  advanced  to  Brown  $11,000,  to 
purchase  a  house  in  town,  to  be  conveyed  to  the  use  of  Mrs.  Brown  ;  and 
he  did,  accordingly,  so  invest  it.  No  provision  having  been  before  made 
on  Mrs.  Brown,  the  administrator  was  right  in  insisting  on  these  terms. 
The  conveyance  of  Robert  Heriot  to  Keith,  of  twenty-nine  negroes  to  the 
use  of  Mrs.  Brown,  is  expressed  to  be  in  consideration  of  the  renunciation 
of  her  inheritance ;  and  on  the  principles  laid  down,  the  consideration  in 
both  cases  are  valid  against  creditors^,  nor  was  it  necessary  to  record  the 
deed  in  the  office  of  the  Secretary  of  State. 

In  the  discussion  of  the  case,  some  remarks  were  made  by  the  counsel, 
as  to  the  magnitude  of  the  provision  made  by  those  deeds  for  Mrs.  Brown  ; 


*566]  CHARLESTON",    FEBRUARY,    1837.  433 

and  clearly  the  law  would  not  justify  the  husband  in  attemptiiifj  to  defraud 
his  creditors  by  using  the  interests  of  the  wife,  "as  a  cover  for  niakini;'  an 
unreasonable  settlemeut  on  her.  But  it  will  be  remenil)ered  that  Mrs. 
Brown  was  wholly  unprovided  for — that  on  the  death  of  her  father,  intes- 
tate, an  estate,  consisting- of  lands,  estimated  at  $60,000,  which  when  sold 
with  a  part  of  the  negroes  only,  brought  the  large  sum  of  §120,000, 
descended  to  her,  and  that  the  highest  conjectural  estimate  of  the  value  of 
the  i)ro})erty  secured  to  her,  does  not  exceed  $45,000.  No  direct  ques- 
tion has  been  made  on  the  subject.  It  is  therefore  unnecessary  to  enter 
into  a  minute  calculation  of  the  reasonableness  of  the  provision  ;  and  I 
confess,  that  under  the  circumstances,  I  should  not  be  disposed  to  look 
into  it  with  too  much  exactness.  With  proper  diligence  the  creditors 
might  have  saved  themselves  out  of  the  large  estate  which  Brown  has 
dissipated. 

It  is  therefore  ordered  and  decreed,  that  so  much  of  the  decree  of  the 
Circuit  Court  as  subjects  the  lands  and  negroes  described  in  the  deed, 
from  the  defendant  Brown,  to  John  A.  and  P.  T.  Keith,  of  the  19th 
January,  1825,  with  the  payment  of  Brown's  debts,  be,  and  the  same  is 
hereby  set  aside  and  reversed.     In  other  respects  it  is  affirmed. 

Chancellors  Harper  and  Johnston,  concurred. 


*SoPHiA  C.  Messervey,  and  Others,   v.  J.  A.    Barelli,  and 
Sophia  Messervey. 


[*5GT 


Plaintiffs  and  their  mother  being  jointly  entitled  to  an  estate  the  latter  administered, 
and  proceedings  in  equity  for  partition  y^ere  had  in  which  the  mother  was 
appointed  guardian  of  her  infant  children,  and  a  sale  was  ordered  for  one-third 
cash,  and  credit  for  the  balance  with  bond  and  mortgage  to  secure  the  purchases. 
At  the  sale  the  mother  purchased  the  principal  part  of  the  estate,  both  real  and 
personal,  and  gave  bond  and  mortgage  for  the  real,  but  paid  no  money,  and  after- 
wards had  the  bond  and  mortgage  assigned  to  herself  as  guardian,  gave  her  receipt 
to  the  Commissioner  as  such,  for  the  shares  of  her  children,  and  took  titles. 
Defendant  knowing  the  terms  of  the  sale,  (having  acted  as  agent  of  the  mother  in 
the  management  of  the  estate,)  and  that  no  money  was  in  fact  paid,  obtained  a 
mortgage  on  the  real  estate  purchased  by  her,  to  secure  a  debt  due  by  her  indi- 
vidually :  Held,  that  the  mortgage  of  the  defendant  must  be  postponed  until  plain- 
tiff's claims  are  satisfied.  [*5*J7] 

Where  the  Commissioner,  under  the  order  of  the  Court  to  deliver  to  the  guardian  the 
portion  of  her  wards,  whether  in  money  or  bonds,  delivered  up  the  guardian's 
bond  given  for  purchases  on  sales  for  petition,  this  is  not  a  discharge  of  the  bond 
and  a  satisfaction  of  the  mortgage  to  secure  it ;  and  defenuant,  with  a  knowledge 
of  the  facts  taking  a  mortgage  from  the  guardian  of  the  property  purchased,  takes 
subject  to  the  equities  of  the  wards.  ["574] 

The  Act  of  1791  prescribing  in  partition  gives  a  lien  on  the  land  for  the  purchase 
money,  whether  the  sale  be  for  cash  or  on  credit.  And  tlie  fact  that  tlie  guardian 
and  Commissioner  interchanged  receipts,  will  not  in  equity  be  regarded  as  a  pay- 
ment so  as  to  extinguish  this  security.  [*675] 

The  Commissioner  having  in  his  report  on  the  sales  in  partition,  stated  that  he  had 
paid  over  her  share  to  a  distributee  who  was  of  full  age,  and  the  report  confirmed 
is  not  an  adjudication  which  will  conclude  plaintiff'  as  to  the  fact  of  payment,  that 
was  not  referred  to  the  Commissioner,  and  was  not  in  issue.  And  the  confirma- 
tion was  not  intended  to  establish  the  fact  of  payment,  but  to  approve  it  if  done. 
[*580] 


434:  SOUTH   CAROLINA   EQUITY   REPORTS.  [*567 

The  real  estate  of  the  guardian  purchased  at  the  partition  sale  and  mortgaged,  first 
ordered  to  be  sold  and  applied  to  the  plaintiifs'  claims  before  that  mortgaged  by- 
guardian  to  defendant.  [*58:2] 

Irregularities  in  form,  cannot  be  taken  advantage  of  after  answering  to  the  merits 
of  the  bill.  [*583] 

Charleston,  May  Terra,  1836. 

The  following  Circuit  degree,  presents  a  full  statement  of  the  case  : — 

Johnson,  Chancellor.  In  1828,  the  late  Capt.  Messervey,  of  Charles- 
ton, died  intestate,  seized  and  possessed  of  real  and  personal  estate  of 
considerable  value,  distributable  amongst  the  defendant,  Sophia  his 
widow,  and  six  children,  who  are  the  plaintiffs  in  this  bill.  Adminis- 
tration of  his  estate  was  granted  to  the  defendant,  Sophia,  and  by  an 
order  of  this  Court,  at  January  Term,  1830,  she  was  appointed  guardian 
of  all  the  minor  children,  being  the  whole  of  the  plaintiffs,  except  Sophia 
and  thus  became  possessed  of  the  personal  estate,  and  entitled  to  receive 
the  rents,  issues  and  profits  of  the  real  estate.  In  May,  1829,  the  plain- 
tiff, Sophia  C,  filed  her  bill  in  this  Court,  on  behalf  of  herself  and  the 
infant  children  of  the  intestate,  praying  a  sale  of  the  whole  estate,  real 
and  personal,  for  the  purpose  of  making  partition,  and  the  defendant, 
Sophia,  answering  that  bill,  assented  that  an  order  for  the  sale  of  the 
estate  might  be  made  for  that  purpose,  and  on  the  recommendation  of 
Mr.  Commissioner  Hunt,  the  whole  estate,  was,  at  the  same  time,  ordered 
to  be  sold,  except  the  furniture,  for  one-third  cash,  balance  on  bond  and 
mortgage,  payable  in  one  and  two  years,  the  real  estate  to  be  insured, 
and  the  policy  to  be  assigned  to  the  Commissioner,  for  the  benefit  of  the 
parties  ;  that  the  portions  of  the  minor  children,  whether  in  money  or 
iDonds,  or  both,  be  paid  and  delivered  over  to  the  defendant,  Sophia, 
their  guardian,  on  her  entering  into  bond,  if  that  had  not  already  been 
done,  with  sufficient  security  for  the  faithful  discharge  of  her  duties  as 
guardian  ;  and  that  the  furniture  should  be  sold  for  cash,  on  the  12th 
January,  1830.  Hunt  the  Commissioner,  reported  to  the  Court,  that  he 
had,  in  pursuance  of  the  order  of  the  Court  sold  the  whole  estate,  and 
that  the  same  had  been  purchased  by  the  defendant,  Sophia,  at  the  gross 
*^r8l  ^^^"^  ^^  $12,835  72  *and  that  he  had  paid  to  defendant,  Sophia, 
-I  one-third  part  of  the  proceeds,  as  her  distributive  share,  and  also 
the  shares  of  her  wards,  the  minor  children  of  the  intestate  ;  and  to  the 
plaintiff,  Sophia,  who  was  then  of  age,  her  share  or  portion.  The  Com- 
missioner also  reported,  that  he  had  investigated  the  accounts  of  defendant, 
Sophia,  as  administratrix  of  the  estate,  and  found  that  the  balance  of 
$2,374  93  cents,  was  the  distributive  share  of  each  child,  of  the  whole 
estate,  real  and  personal ;  and  that  the  defendant,  Sophia,  had  received 
that  amount  on  account  of  each  of  her  wards  ;  and  that  he  had  paid  over 
a  like  sum  to  the  plaintiff,  Sophia  C,  and  recommended  that  the 
defendant,  Sophia,  should  be  discharged  from  her  administration,  and 
account  annully  with  the  Commissioner,  for  the  estate  of  her  wards — 
which  report  was  confirmed  by  the  order  of  the  Court.  The  plaintiff, 
Sophia  C,  avers  that  so  much  of  the  foregoing  report  as  represents  that 
her  portion  of  the  estate  was  paid  to  her,  or  that  the  same  was  actually 
paid  to  her,  is  not  true  in  point  of  fact,  and  that  she  has  not  received  the 
same  or  any  part  of  it,  and  defies  the  production  of  any  evidence  to  show 


*56S] 


CHARLESTON,   FEBRUARY,    1837.  435 


it ;  but  on  the  contrary,  she  was  always  under  the  impression,  that  lier 
portion  had  been  paid  to  her  mother,  the  defendant,  Sopliia,  with  that  of 
the  minor  chiklren  ;  and  believed  that  the  orders  of  the  Court,  reciuiring 
the  defendant,  Sopliia,  to  give  a  guardianship  bond  and  security,  and  the. 
purchaser  at  the  Commissioner's  sale  to  pay  one-third  cash  and  to  give 
bond  and  mortgage  for  the  balance,  had  been  strictly  complied  with. 
And  the  bill  charges,  that  the  defendant,  Sophia,  combining  and  con- 
federating with  defendant,  Barelli,  so  far  from  complying  with  the  terms 
of  the  order  directing  and  requiring  her  to  give  bond  and  security,  for  the 
faithful  discharge  of  her  duty  as  guardian  of  her  infant  children,  executed 
the  said  bond  in  her  own  name,  but  without  any  warrant  or  authority 
signed  and  sealed  it,  in  the  name  of  one  Susannah  Gleize,  her  sister, 
whereby  the  said  bond  is  without  the  required  security  :  nor  did  she  give 
bond  and  mortgage  for  her  purchases  at  the  Commissioner's  sale,  as 
required  by  the  order  for  sale  ;  nor  has  she  accounted  with  the  proper 
officer  of  the  Court  for  her  management  of  the  estate  of  her  wards  ;  and 
the  plaintiffs  suppose  and  believe,  that  no  conveyance  was  ever  executed 
by  the  Commissioner  to  defendant,  Sophia,  for  the  property  purchased 
at  his  sale.  The  bill  further  charges,  that  defendant,  Sophia,  having 
become  indebted  to  her  co-defendant,  Barelli,  on  the  20th  May, 
*1830,  executed  to  him  a  penal  bond,  conditioned  for  the  payment  r:j</rnq 
of  $5,008  50,  and  to  secure  the  payment  thereof,  mortgaged  to  the  ^ 
said  Barelli,  a  three  story  brick  building  in  Tradd  street ;  a  lot  of  land 
on  the  east  side  of  Meeting  street,  at  the  corner  of  Cumberland  and 
Meeting  streets  ;  and  a  two  story  brick  house  and  lot  on  the  east  side  of 
Meeting  street,  No.  120 — of  all  which,  the  intestate  was  seized  at  the 
time  of  his  death,  and  being  part  of  the  real  estate  purchased  by  de- 
fendant, Sophia,  at  the  sale  of  the  Commissioner.  That  the  defendant, 
Barelli,  was  upon  the  most  intimate  terms  of  friendship  with  defendant, 
Sophia,  and  acted  as  her  agent  in  the  management  of  the  said  estate,  as 
appears  from  his  own  advertisement,  published  in  the  Charleston 
Courier  of  the  24th  and  27th  January,  1829,  in  which  he  desires  all 
persons  who  are  indebted  to  the  estate  to  make  payment  to  him,  and 
those  to  whom  the  estate  was  indebted  to  present  their  accounts  properly 
attested.  The  bill  further  charges,  that  at  the  time  the  defendant, 
Barelli,  took  the  said  mortgage,  he  knew  and  was  informed,  that  the 
premises  were  part  of  the  estate  of  the  intestate,  and  was  privy  to  all  the 
circumstances  attending  the  sale  by  the  Commissioner,  and  the  purchase 
by  the  defendant,  Sophia ;  but  had  notwithstanding  procured,  in  a 
judicial  proceeding  in  the  Court  of  Common  Pleas,  an  order  for  the  sale 
of  the  premises,  to  foreclose  the  equity  of  redemption,  and  that  in  pur- 
suance thereof,  the  premises  had  been  advertised  for  sale  by  the  sheriff 
under  instructions  from  defendant,  Barelli.  The  bill  prays,  amongst 
other  things,  that  defendant,  Sophia,  may  account  for  the  plaintilfs' 
respective  portions  of  the  estate,  and  that  she  be  required  to  give  a  new 
guardianship  bond,  with  sufficient  security  to  cover  all  the  demands 
against  her,  that  the  sales  of  the  real  estate  be  set  aside  as  fraudulent ; 
or  that  defendant,  Sophia,  be  required  to  give  a  mortgage  of  the  property 
purchased  by  her  at  the  Commissioner's  sale,  as  of  the  day  of  sale,  and 
that  the  mortgage  from  her  to  defendant,  Barelli,  may  be  decreed  to  be 
null  and  void,  as  far  as  regards  the  claims  of  the  plaintiffs  :  that  the  de- 


436  SOUTH    CAROLINA   EQUITY   REPORTS.  [*569 

fendant,  Barelli,  be  enjoined  from  selling  the  premises  under  the  order 
obtained  at  law,  to  foreclose  his  mortgage — and  for  general  relief. 
The  defendant,  Sophia,  has  not  answered.  The  defendant,  Barelli, 
answering,  admits  the  death  of  Capt.  Messervey,  intestate,  leaving 
the  estate  and  family  stated  in  the  bill,  and  understood  that  the  estate 
i^r^Q-i  was  to  be  settled  by  a  proceeding  in  the  Court  of  Equity,  *and 

-J  that  defendant,  Sophia,  was  advised  to  become  the  guardian  of 
her  minor  children,  and  supposed  that  every  thing  done  under  the 
sanction  of  the  Court  was  correctly  done,  but  was  otherwise  a 
stranger  to  the  proceedings.  He  denies  all  combination  with  Sophia, 
and  states,  that  having  become  largely  indebted  to  him,  she  gave  the 
bond  and  mortgage,  stated  in  the  bill,  to  secure  the  payment.  He  ad- 
mits, that  when  he  took  the  mortgage,  he  knew  that  defendant,  Sophia, 
had  the  same  under  a  sale  from  the  Commissioner,  but  she  assured  him 
that  she  had  a  good  title,  and  that  it  was  only  necessary  to  pay  the  fees, 
which  she  requested  him  to  do,  and  referred  him  to  Mr.  Hunt  the  Com- 
missioner. On  calling  on  Mr.  Hunt  he  told  him  that  defendant,  Sophia, 
had  bought  the  property,  and  settled  with  him,  and  he  was  ready  to  deliver 
the  titles  when  the  fees  were  paid.  Defendant,  Barelli,  paid  the  fees,  and 
took  the  title  deeds  and  delivered  them  to  defendant,  Sophia,  or  they 
were  delivered  to  her  by  Mr.  Kane,  the  clerk  of  the  Commissioner  Hunt. 
That  through  the  agency  of  Messrs.  Hunt  and  Shand,  he  obtained  a  cer- 
tificate that  there  was  no  record  of  any  mortgage  of  the  premises  in  the 
office  of  register  of  mesne  conveyances,  and  from  all  the  other  offices  in 
the  city,  where,  if  there  were  any  incumbrances,  they  would  be  found  ; 
that  none  such  existed,  and  on  the  faith  of  these,  and  the  representations 
of  the  defendant,  Sophia,  that  her  title  was  good,  and  that  she  intended 
to  record  the  conveyance  from  the  Commissioner  to  herself,  he  consented 
to  accept  the  mortgage  of  the  premises  as  a  security  for  the  sum  due 
him ;  and  that  so  far  from  knowing  that  there  was  any  mortgage  from 
defendant,  Sophia,  to  the  Commissioner,  or  other  incumbrances,  he  acted 
with  all  the  caution  which  his  knowledge  enabled  him  to  exercise,  and  in 
full  contidence  that  defendant  had  a  perfect  title  to  the  premises  mort- 
gaged to  him.  He  admits  that  he  may  have  read  the  notice  of  the  sale 
published  l>y  the  Commissioner,  but  avers  that  he  did  not  charge  his 
memory  with  the  terms,  and  denies  that  he  had  any  agency  in  obtaining 
the  order  for  sale,  or  in  the  settlement  between  defendant,  Sophia,  and 
the  Commissioner;  and  was  in  fact  ignorant  of  the  decree,  and  a  stranger 
to  the  proceedings  for  dividing  and  settling  the  estate,  and  trusted  to  the 
certificates,  that  there  was  no  incumbrances  on  the  estate,  without  knowing, 
or  hearing,  or  being  given  to  understand,  that  there  was  any  fraud  or 
irregularity  in  the  transaction.  He  admits,  that  in  the  course  of  a  legal 
5^rh.-i  proceeding  in  the  Common  *Pleas,  he  obtained  an  order  for  the 

-■  sale  of  the  premises  mortgaged  to  him,  and  the  plaintiffs'  prayer 
for  an  injunction  having  been  refused,  they  were  sold  by  the  sheriti"  on 
the  5lh  August,  1833,  and  that  he  purchased  the  houses  and  lots  in 
Meeting  and  Tradd  streets,  at  $3,800,  leaving  a  balance  still  due  him  on 
the  judgment  against  defendant,  Sophia.  He  insists  on  his  title  thus  ob- 
tained, and  denying  all  fraud  and  combination,  prays  to  be  dismissed,  &c. 
On  the  trial  of  tlie  case,  it  appeared  in  evidence  that  defendant,  Barelli, 
was  on  terms  of  intimate  friendship   with  defendant,  Sophia,  and  her 


*571]  CHARLESTON,   FEBRUARY,    1837.  437 

family  ;  paid  his  addresses  to  the  plaintiff,  Sophia  C;  and  was  so  marked 
in  his  attentions  as  to  induce  her  friends  to  suppose  that  they  were  cng-aj;-ed 
to  be  married.  To  her  mother,  defendant  Sophia,  he  familiarly  ap))lied 
the  epithet  of  "  mother,"  to  her  sisters  that  of  "sister,"  and  to  her  aunts 
that  of  "  aunt ;"  and  was  a  constant  visitor  at  the  house,  and  took  all 
liberties  he  would  have  done  if  he  had  been  a  member  of  the  family,  but 
afterwards  married  another  lady. 

In  January,  1829,  as  stated  in  the  bill,  he  advertised  himself,  in  the 
Courier,  as  the  agent  of  defendant,  Sophia,  the  administratrix  of  the 
estate,  giving  notice  to  those  indebted  to  the  estate  to  make  payment  to 
him,  and  to  those  to  whom  the  estate  was  indebted  to  present  their  de- 
mands to  him,  and  made  the  inventory  of  the  estate.  The  auctioneer, 
Mr.  Logan,  who  conducted  the  sale  made  by  the  Commissioner,  had 
instructions  from  defendant,  Sophia,  who  did  not  even  attend  the  sale,  to 
act  under  the  direction  of  Barelli.  The  prices  were  limited  by  him  at  so 
high  a  rate,  that  no  one  else  bought  any  thing,  and  he  bid  off  the  whole 
on  account  of  defendant,  Sophia.  The  sales  were  reported  to  him,  and 
he  gave  a  check  for  the  commissions.  Dr.  Schmidt,  who  attended  the 
sale  with  a  view  to  purchase  some  of  the  property,  applied  to  him  to  know 
whether  it  was  wanted  for  the  family,  for,  in  that  event,  he  did  not  intend 
to  bid.  He  declined  answering  this  question  directly,  but  remarked  that 
nothing  would  be  suffered  to  go  out  of  the  family  at  less  than  the  prices 
fixed. 

The  evidence  is  very  abundant,  that  such  was  the  influence  which  Ba- 
relli had  obtained  over  defendant,  Sophia,  and  such  the  confidence  she 
reposed  in  him,  that  she  confided  the  management  of  the  estate  almost 
exclusively  to  him,  and  would  do  no  act  herself  in  relation  to  it  without 
his  approbation.  In  the  language  of  one  of  the  witnesses,  she  acted  upon 
his  ipae  dixit. 

*This  confidence  probably  originated  in  her  own  incapacity  for  r^rwc) 
business,  and  in  the  confidence  that  he  would  become  interested  in  it  L  '  -' 
by  an  intermarriage  with  her  daughter.  She  had  also  become  indel)ted 
to  him,  in  consequence  of  having  engaged  with  him  as  a  partner  in  sailing 
a  vessel  to  the  West  Indies ;  and,  on  one  of  her  sisters  remonstrating 
with  her  against  suffering  him  to  exercise  such  influence  over  her,  and 
taking  such  liberties  in  her  house,  she  replied,  that  she  was  indebted  to 
him,  and  if  she  did  not  act  as  he  wished,  he  would  ruin  her. 

In  the  spring  of  1829,  Mrs,  Wilkie  heard  a  conversation  between  de- 
fendants, on  the  subject  of  securing  the  debt  by  a  mortgage,  and  the 
witness  stated  to  him  that  the  property  belonged  to  the  estate,  to  which 
he  replied,  that  "it  was  no  business  of  his." 

Another  witness  (Mrs.  Schirer)  stated  that  she  heard  Barelli  say  that 
a  sale  of  the  estate  was  necessary,  to  put  it  in  the  power  of  the  defendant, 
Sophia,  and  understood  that  the  proceedings  in  equity  were  intended  for 
that  purpose. 

Mr.  Kane,  the  clerk  of  the  Commissioner,  Mr.  Hunt,  examined  on 
interrogatories,  stated  that  Mr.  Hunt,  since  dead,  executed  a  deed  to 
defendant,  Sophia,  for  the  houses  and  lots  purchased  by  her  at  the  sale, 
and  took  her  bond  and  mortgage  of  the  premises  for  the  credit  part  of 
the  sales,  but  that  no  money  was  paid  at  the  time  ;  since  the  answer  of 
Barelli,  and  not  very  long  before  the  examination  of  the  witness,  he  has 
70L.    1.— 51 


438  SOUTH    CAROLINA   EQUITY    REPORTS.  [*572 

discovered  the  bond  and  mortgage  in  his  own  possession,  endorsed  with 
the  assignment  of  Mr.  Hunt  to  defendant,  Sophia,  as  the  guardian  of  her 
children,  but  he  does  not  state  whether  they  were  or  were  not  delivered 
to  her. 

There  is  no  doubt  that,  on  general  principles,  the  estate  purchased  by- 
defendant,  Sophia,  at  the  Commissioner's  sale,  and  mortgaged  to  secure 
the  bond  given  for  the  credit  portion  of  the  sales,  would  in  her  hands  be 
liable  for  the  amount,  notwithstanding  it  has  never  been  recorded.  She 
has,  however,  subsequently  mortgaged  them  to  Barelli,  to  secure  a  debt 
due  to  him  ;  and  the  questions  which  arise,  are  :  1st.  Whether,  in  point 
of  fact,  Barelli  had  notice  of  the  existence  of  the  prior  mortgage  at  the 
time  he  took  the  mortgage  to  himself ;  and  2d.  If  he  had,  whether  he 
must  not  be  postponed  until  the  former  mortgage  is  satisfied. 

Barelli,  in  his  answer,  explicitly  denies  that  he  had  notice  of  the  prior 
mortgage,  and  this  must  be  taken  for  granted  until  the  contrary  is_ shown 
*f^*7^1  '-*y  competent  and  conclusive  evidence  ;  but  it  *strikes  me,  that 
•^  no  one,  who  will  take  the  trouble  to  examine  the  facts  of 
the  case,  can  doubt  that  he  has  wilfully  misrepresented  the  fact, 
or  more  charitably,  that  he  has  forgotten  it.  The  whole  management  of 
the  estate  was  confided  to  him  by  the  administratrix,  the  defendant, 
Sophia,  and  so  completely  had  he  acquired  her  confidence,  that  she  would 
do  no  act  in  relation  to  it  without  his  concurrence.  He  made  the  inven- 
tory of  the  estate,  received  the  debts  due  to  the  estate,  and  paid  those 
against  it.  He  alone  attended  and  gave  directions  as  to  conducting  the 
sales  by  the  Commissioner,  and  paid  the  fees  of  the  auctioneer.  He 
received  the  deed  from  the  Commissioner  to  defendant,  Sophia,  and 
paid  his  fees.  When  speaking  on  the  subject  of  procuring  a  mortgage 
to  secure  the  debt  due  to  himself,  he  was  told  by  the  witness,  Mrs. 
Wilkie,  that  the  property  belonged  to  the  estate.  He  stated  to  the  wit- 
ness, Mrs.  Schirer,  that  a  sale  of  the  estate  was  necessary  to  put  it  in  the 
power  of  defendant,  Sophia  ;  and  I  will  not  believe  he  was  so  worthless 
and  faithless  an  agent  as  to  suffer  himself  to  remain  profoundly  ignorant 
that  a  mortgage  of  the  property  to  secure  the  purchase-money  was  a  part 
of  the  terms  of  the  sale.  The  mantle  of  charity  is  scarcely  broad  enough 
to  hide  the  conclusion,  which  necessarily  arises  out  of  the  combination  of 
circumstances,  that  the  transaction  was  too  deeply  laid  to  be  easily 
forgotten. 

The  defendant,  Sophia,  had  become  largely  indebted  to  him,  and  it  was 
but  reasonable  that  he  should  desire  to  have  it  secured  ;  a  mortgage  on 
her  undivided  estate  would  not,  perhaps,  furnish  a  very  ample  security, 
besides  the  inconvenience  of  obtaining  partition  with  the  other  parties ; 
besides  a  sale  under  a  decree  in  equity,  at  which  she  was  to  become  the 
purchaser,  would  put  the  whole  estate  in  her  power,  and  she  dare  not 
refuse  any  proposition  that  he  would  make ;  and  for  what  other  purpose 
could  a  sale  of  the  estate  have  been  desired  ?  Not  to  meet  demands 
against  it,  for  they  had  been  paid — not  to  provide  for  the  wants  of  the 
minor  children,  for  the  estate  remaining  in  her  hands,  as  administratrix, 
would  have  been  just  as  productive  as  if  they  were  her  own  ;  nor  does  it 
appear  that  there  was  any  peculiar  necessity  for  selling  the  whole  estate 
on  account  of  the  plaintiff,  Sophia  C,  unless  indeed  it  was  in  her  contem- 


*573]  CHARLESTON,   FEBRUARY,    1S37.  489 

plation  of  her  marriage  with  Barelli.  And  is  it  extraorrlinarv  that  Barelli 
should  have  used  the  influence  which  he  had  acquired  over  this  family,  to 
induce  them  to  do  what  he  might  suppose  would  elfectually  secure  his 
demand  against  the  mother  ?  *The  bad  faith  which  he  practised  r*-K  , 
in  the  delicate  affair  of  his  attentions  to  the  plaintiff,  Sophia  C,  L''-^* 
is  pregnant  proof  that  he  was  not  wholly  trustworthy.  There  can,  I 
think,  be  but  little  doubt  that  he  was  better  informed  of  the  character 
and  nature  of  the  proceedings  in  equity  than  either  the  defendant,  Sophia, 
or  any  of  the  family  ;  if  he  was  not,  he  was  not  that  diligent  and  faithful 
agent  which  defendant,  Sophia,  supposed.  I  conclude,  therefore,  that  he 
did  know  that  a  mortgage  of  the  estate  to  secure  the  price  was  a  part  of 
the  terms  of  the  sale,  and  that  no  money  was  paid  by  the  defendant,  So- 
phia, to  the  Commissioner,  but  the  fees  of  office.    . 

Assuming,  therefore,  that  Barelli  had  notice  that  the  mortgage  was  a 
part  of  the  terms  of  the  sale,  and  that  no  part  of  the  purchase-money  was 
paid  by  defendant,  Sophia,  to  the  Commissioner,  the  question  then  arises, 
whether  in  law  and  equity  the  lien  of  his  mortgage  is  to  be  postponed 
until  the  claims  of  the  plaintiffs  are  satisfied,  and  to  what  extent.  And 
here,  again,  I  think  there  is  but  little  room  to  doubt. 

The  bond  and  mortgage  given  by  defendant,  Sophia,  for  the  purchase- 
money  to  the  Commissioner,  were  prescribed  by  the  order,  and  consti- 
tuted a  part  of  the  proceedings  of  the  Court,  and  could  not  be  cancelled 
by  the  Commissioner,  but  upon  full  satisfaction,  or  the  order  of  the  Court. 
But  the  Commissioner  was,  by  the  order  of  the  Courtof  May  Term,  1829, 
directed  to  deliver  and  pay  to  defendant,  Sophia,  as  the  guardian  of  her 
minor  children,  their  portions  of  the  estate,  whether  the  same  should  con- 
sist of  money  or  bonds,  or  both ;  and  under  this  order,  she  was  entitled 
to  the  possession  of  the  bonds  :  and  I  apprehend  that  this  would  no 
more  discharge  the  bond  than  if  a  creditor  should  confide  the  safe  keep- 
ing of  a  bond  to  his  debtor.  Her  appointipent  as  guardian  of  her  minor 
children,  did  not  operate  as  a  satisfaction  of  the  bond  and  mortgage.  It 
is  true,  that  the  debt  to  her  wards  on  this  account,  became  identified  with 
her  personal  responsibility,  but  the  mortgage  was  a  higher  security,  whicli 
she  was  incapable  of  cancelling,  as  there  was  no  other  party  capable  of 
contracting  about  it.  The  defendant,  Barelli,  dealing  with  defendant, 
Sophia,  with  the  knowledge  that  she  was  required  to  give  the  bond 
and  mortgage,  and  had  been  appointed  guardian  of  her  children,  was 
bound  to  know  the  trust  resulting  as  a  legal  conclusion  from  the  circum- 
stances, and  according  to  a  familiar  rule,  he  is  bound  by  them  ;  one  deal- 
ing with  *a  trustee  in  relation  to  the  trust  property  with  a  r^^^S 
knowledge  of  the  trust,  assumes  all  the  responsibilities  of  the  trust.   ^ 

There  is  another  view  which  puts  this  matter  beyond  all  controversy. 
The  Act  of  1791,  1  Faust,  27,  under  which  the  proceedings  for  partition 
were  had,  expressly  provides,  in  all  cases,  when  lands  are  directed  to  be 
sold  for  the  purpose  of  partition,  they  "  shall  stand  pledged  for  the  pay- 
ment of  the  purchase- money ;"  and  in  my  own  administration  pf  justice, 
when  my  attention  has  been  called  to  the  subject,  T  have  always  refused 
to  require  a  mortgage  from  the  purchaser,  believing  that  the  Act  itself 
gave  a  better  security  than  any  mortgage  that  could  be  devised.  It  is  a 
security  which  even  the  Court  itself  has  no  power  to  cancel.  Defendant, 
Barelli,  according  to  his  own  admissions,  knew  that  the  property  mort- 


440  SOUTH   CAROLINA   EQUITY   REPORTS.  [*575 

gaged  to  him  belonged  to  the  estate  of  the  intestate,  and  that  it  had  been 
pnrchased  by  defendant,  Sophia,  at  the  sale  by  the  Commissioner  for 
]iartition  ;  and  his  ignorance,  if  he  was  indeed  ignorant,  that  the  law 
imposed  a  lien  on  it  for  the  purchase-money,  cannot  help  him.  Of  a  part 
of  the  purchase,  one-third  was  required  to  be  paid  in  cash  ;  and  the 
Commissioner,  in  his  report,  has  acknowledged  the  receipt  of  it,  and 
states  that  he  had  paid  it  over  to  defendant,  Sophia,  on  account  of  her 
wards,  to  the  extent  of  her  interest  in  it,  and  to  the  plaintiff,  Sophia,  her 
portion  of  the  whole  estate  ;  and  the  question  arises,  whether  the  lien 
given  by  the  Act  extends  also  to  the  cash  part  of  the  sales. 

The  case  itself  furnishes  conclusive  evidence  that  no  money  was  ever, 
in  fact,  paid  on  account  of  the  sales.  Defendant,  Sophia,  was  entitled, 
in  her  own  right,  to  one-third  of  the  proceeds,  and  to  five-sixths  of  the 
remaining  two-thirds  in  right  of  her  wards ;  and  as  to  them,  it  would 
have  been  a  mockery  to  pay  the  amount  to  the  Commissioner,  and^to  re- 
ceive it  back  in  the  instant ;  the  interchange  of  receipts  between  them 
was  all  that  was  rendered  necessary  by  the  occasion  ;  and  it  is  not  pre- 
tended in  the  report  that  the  Commissioner  received  any  money  on 
account  of  plaintiff,  Sophia.  Divested  of  the  mortgage,  the  case  stands 
thus  : — The  estate  was  sold  pai'tly  for  cash,  and  partly  on  credit,  but  the 
cash  part  was  never  paid.  Can  the  purchaser  resist  the  lien  created  by 
the  act,  as  to  the  cash  part  of  the  purchase  ?  I  think  not.  It  is  true 
that  the  interchange  of  receipts  between  the  Commissioner  and  defendant, 
Sophia,  might,  for  most  purposes,  be  regarded  as  a  payment ;  but  equity 
regards  the  substance,  and  not  the  form,  of  things,  and  will,  to  subserve 
.^Kw/>-|  *the  purposes  of  justice,  set  up  securities,  which.  In  form,  have 
-•  been  extinguished.  The  case  of  Sophia  C.  Messervey,  is  some- 
thing different  from  that  of  the  minor  plaintiffs,  of  whom  she  is  the 
guardian  ad  litem.  The  Commissioner  states,  in  his  report  of  January, 
1830,  that  he,  himself,  had  paid  to  this  plaintiff,  her  distributive  share  of 
the  estate,  real  and  personal.  By  what  means  this  fact  found  its  way 
into  the  report,  or  upon  what  circumstances  it  was  founded,  does  not 
appear :  but  the  case  furnishes  intrinsic  evidence  that  the  fact  is  not 
true;  she  avers  most  unequivocally  that  she  has  never  received  anything. 
The  Commissioner,  Hunt,  never  received  a  dollar  on  account  of  the  sales 
beyond  his  fees  of  office,  and  two-thirds  of  the  purchase-money  was  not 
then  due  ;  and  on  the  trial  of  this  case,  there  has  not  been  even  a  show 
of  evidence,  or  a  plausible  argument  in  support  of  it ;  and  the  question 
is,  whether  she  is  bound  by  it. 

The  judgment  of  a  Court  of  competent  jurisdiction,  on  a  matter  in 
issue,  unquestionably  concludes  the  parties  ;  and  that  this  Court  would, 
on  a  proper  case,  have  had  jurisdiction  of  the  question,  cannot  admit  of 
a  doubt;  and  it  only  remains  to  be  inquired,  whether  it  was  put  in  issue 
between  the  parties,  and  adjudged  by  the  Court. 

The  bill  filed  by  the  plaintiff,  Sophia,  in  1829,  on  which  this  report  is 
founded,  only  prays  for  a  sale  of  the  estate,  for  partition  ;  and  necessarily 
could  not  have  put  in  issue  the  question,  whether  she  had,  or  had  not 
received  her  distributive  share.  The  usual  formula  of  referring  the  bill 
and  answer  to  the  Commissioner,  and  his  report  recommending  the  sale, 
followed  ;  and  upon  this  was  founded  an  order  for  the  sale  of  the  estate, 
real  and  personal,  with  directions  as  to  the  terms,  and  that  the  proceeds 


*576]  CHARLESTON,   FEBRUARY,    1837.  441 

should  be  "divided  and  distributed  between  tlie  ])laintifr  and  defendant, 
in  the  proportion  of  one-third  to  the  defendant,  Sopliia  Messervey,  and 
two-thirds  to  be  divided  between  tlie  phiintilF,  Sophia  C.  and  her  minor 
brothers  and  sisters;"  and  that  the  portions  of  the  minors  should  be  paid 
and  delivered  to  their  guardians,  kc,  &c.  :  and  1  apprehend  that  this 
order  did  not  put  in  issue  the  payment,  for  the  fund  liad  not  yet  been 
realized  ;  yet  the  Commissioner,  in  his  report  of  tlie  manner  in  which 
this  order  had  been  executed,  states  that  he  had  received  and  paid  her 
the  whole  of  her  distributive  share  of  the  estate.  She  never  could  have 
anticipated  that  the  question  of  payment  to  her,  could  have  been  involved 
in  a  report  *of  his  own  actings  and  doings,  in  the  execution  of  the  r^r^-T 
orders  of  the  Court ;  and  ought  not  to  be  bound  unless  she  had  had  L  '  '  ' 
an  opportunity  of  controverting  the  fact,  which  does  not  follow  from  the 
order  of  sale,  nor  does  it  appear  from  the  report  itself,  which  appears  on 
its  face  as  a  mere  official  ex  jmrfe  proceeding.  But  this  is  not  all  :  the 
report  concludes  by  merely  recommending  "that  defendant  should  be 
discharged  from  her  responsibility,  as  administratrix,  and  that  she 
account,  yearly,  for  the  proceeds  of  the  estate  of  her  minor  chiklren  ;  and 
in  confirming  this  report,  effect  only  is  given  to  the  matters  recommended 
by  the  Commissioner,  and  is  not  a  sanction  to  the  facts  stated  in  it,  having 
no  relation  to  the  matters  adjudged  ;  the  fact  that  the  Commissioner  had 
paid  to  the  plaintiff  her  distributive  share  of  the  estate,  has  no  possible 
connection  with  the  liability  of  defendant,  Sophia,  as  administratrix,  or 
her  accountability  as  her  guardian,  the  only  matters  adjudged.  I  there- 
fore conclude  that  the  question  is  not  res  judicata,  and  that  she  is  not 
concluded. 

It  is  therefore  ordered  and  deci^eed,  that  the  defendant,  Sophia  Mes- 
servey, do  account  before  the  Commissioner  for  the  estate  of  her  wards, 
the  minor  plaintiffs,  distinguishing  how  much  is  due  on  account  of  the 
sales  of  the  real,  and  how  much  on  account  of  the  personal  estate  ;  and 
that  he  ascertain  and  report  how  much  is  due  to  the  plaintiff,  Sophia  C. 
Messervey,  distinguishing  in  like  manner  between  the  real  and  personal 
estate.  And  it  is  further  ordered,  that  unless  the  defendant  shall,  within 
sixty  days  after  the  final  order  of  the  Court,  on  the  matters  of  account, 
and  notice  of  this  decree,  pay  to  the  Master  or  Commissioner  of  the 
Court,  to  abide  the  further  order  of  the  Court,  what  shall  be  ascertained 
to  be  due  to  the  minor  plaintiifs,  on  account  of  their  distributive  share  of 
the  real  estate  of  their  intestate  father,  with  interest  up  to  the  time  of 
payment,  and  also  pay,  to  the  plaintiff,  Sophia  C,  what  shall  be  likewise 
due  to  her  on  account  of  the  said  real  estate,  with  interest  as  aforesaid, 
then  the  mortgage  executed  by  the  said  Sophia  Messervey,  the  defendant, 
to  the  said  defendant,  Barelli,  for  the  three  story  brick  house  and  lot  in 
Tradd  Street,  and  the  two  story  brick  house  situate  on  the  east  side  of 
Meeting  Street,  and  No.  120,  more  particularly  described  in  the  j^lead- 
ings  and  the  order  of  the  Court  of  Common  Pleas  directing  the  sale  for 
foreclosing  the  equity  of  redemption,  and  all  the  proceedings  had  thereon, 
be,  and  the  same  are  hereby  declared  to  be  set  aside,  and  vacated,  and 
*utterly  null  and  void;  and  that  the  Commissioner  or  Master  of  r:i:rYQ 
Court,  do  thereupon  proceed  to  sell  the  said  houses  and  lots;  if  '- 
both  be  necessary,  after  having  given  due  notice  thereof,  for  cash  ;  and 
that  he  retain  in  his  hands  so  much  of  the  proceeds,  subject  to  the  order 


442  SOUTH    CAROLINA    EQUITY   REPORTS.  [*l>78 

of  the  Court,  as  may  be  necessary  to  pay  the  sums  ascertained  to  be  due 
to  the  minor  plaintifts,  on  account  of  their  interest  aforesaid  in  the  said 
real  estate  of  the  intestate  ;  and  that  he  likewise  pay  to  plaintiff,  Sophia 
C.  Messervey,  what  may  be  found  due  to  her  on  that  account.  If  the 
proceeds  are  insufficient,  then  he  will  retain  for  the  minors,  in  relative 
proportion  with  the  said  Sophia  C,  and  pay  her  the  balance.  If  the 
proceeds  exceed  the  amount,  he  will  pay  the  excess  to  defendant,  Barelli, 
deducting:  therefrom  the  costs  of  this  suit.  In  any  event,  the  defendant, 
Barelli,  must  pay  all  costs. 

From  this  decree  the  defendant  appeals,  on  the  following-  grounds  : 
First. — That  the  evidence  of  Barelli 's  privity  to  the  errors  contained 
in  the  proceedings  in  equity,  is  too  slight  to  overturn  his  solemn  denial 
on  oath  ;  and  submit,  in  opposition   to  the  inference  of  his  privity,  the 
following  considerations: 

1.  That  his  agency  in  the  commercial  business  of  Mrs.  Messervey,  and 
in  receiving  and  paying  money  for  her,  and  in  bidding  for  her  at  the  sale, 
is  a  distinct  thing  from  the  management  of  her  legal  affairs,  in  which  she 
was  advised  by  her  own  counsel. 

2.  That  the  proceedings  in  Chancery  were,  on  the  face  of  them,  in- 
tended to  vest  the  whole  estate  in  her,  on  the  security  of  her  guardianship 
bond  ;  and  there  was  no  proof  that  Barelli  consulted  her  legal  advisers, 
or  had  any  notice  that  those  proceedings  were  irregular. 

3.  That  the  witnesses,  Shirer  and  Wilkie,  are  mistaken  in  the  evidence 
w^hich  they  gave ;  as  will  be  proved  by  the  acccounts  between  Barelli 
and  Messervey,  from  which  it  appears,  that  in  January,  1829,  and  so 
late  as  June,  1829,  Sophia  Messervey  was  indebted  to  Barelli  in  but  a 
small  sum,  and  that  the  heavy  liabilities  which  she  incurred  to  him,  took 
place  after  January,  1830;  and  that  the  proposal  of  a  mortgage  came 
from  Sophia  Messervey  at  a  subsequent  period,  and  after  the  dissolution 
of  his  agency. 

4.  That  if  these  considerations  are  not  sufficient  to  take  off,  altogether, 
the  charge  against  the  defendant,  the  Court  should  direct  an  issue  upon 
the  point  of  notice. 

*5'791  *Secondly. — That  even  supposing  Barelli  to  be  privy  to  the 
-^  deception  practised  on  the  Court,  the  plaintiff,  Sophia  C,  has  no 
title  to  relief,  inasmuch  as  she  consented  to  a  report,  declaring  that  she 
had  received  her  full  share  of  the  real  estate,  sold  by  the  Commissioner 
at  her  own  request,  to  her  mother  ;  and  caused  the  said  report  to  be  con- 
firmed ;  and  there  is  no  evidence  that  the  solicitors  were  employed  or 
received  their  instructions  from  Barelli,  or  that  the  report  was  prepared 
at  his  instance,  or  with  his  knowledge. 

Thirdly — That  under  the  orders  made  in  this  cause,  Mrs.  Messervey 
being  the  payee,  as  guardian,  of  her  own  bonds,  could  release  the  mort- 
gage ;  and  that  the  deception  practised  on  the  Court  was  confined  to  the 
fact  of  representing  that  she  was  guardian — in  which  there  is  no  evidence 
of  Barelli's  participation. 

Fourthly. — That  the  parties  in  the  suit,  who  were  of  full  age,  are 
responsible,  and  the  solicitors  and  the  Commissioner  are  accountable  for 
the  irregularities  in  the  legal  proceedings  ;  and  that  a  decree  against 
Barelli  goes  to  charge  a  bona  fide  creditor,  upon  doubtful  evidence,  of 


*579]  CHARLESTON,    FEBRUARY,    1837.  443 

participation  in  a  trausactioii  for  which  the  imiuediatc  parties  are  not 
called  to  account. 

Fifthly. — That  even  if  Burelli  should  be  held  bound,  by  constructive 
or  actual  notice  of  the  decree,  to  see  whether  there  was  not  a  niortj^age 
to  the  Coimuissiouer,  such  notice  would  bind  him  only  as  to  five-si,\ths  of 
$7,840,  and  the  property  in  his  hands  should  contribute  only  ratealjly  witli 
the  rest  of  the  real  estate  that  ought  to  have  been  mortgaged. 

And  lastly. — That  the  proceedings  in  Messervey  v.  Messervey,  if 
void  or  voidable,  are  so  only  as  to  the  shares  of  the  infants.  And  that 
the  infants  are  not  parties  to  the  present  bill.  That  the  style  in  which 
the  plaintiff,  Sophia,  chooses  to  sue,  as  on  behalf  of  herself  and  brothers, 
is  unmeaning,  and  can  make  no  difference  in  the  consideration  of  the 
Court,  as  to  parties,  and  that  the  bill  should  be  dismissed. 

Petigru  and  Lesesne,  for  appellant. 

nice  and  Mevimimjer,  contra. 

Chancellor  Harper  delivered  the  opinion  of  the  Court. 

The  first  ground  of  appeal  relates  to  matters  of  fact,  with  respect  to 
which  we  would  very  much  incline  to  be  governed  by  the  *Chan-  ^:crQ/^ 
cellor's  decision.  Our  own  judgment  on  the  evidence  entirely  L 
agrees  with  the  Chancellor's.  The  evidence  is,  that  tlie  defendant,  Ba- 
relli,  transacted  not  only  the  commercial  business  of  Mrs.  Messervey,  but 
all  her  business  affairs.  The  testimony  of  Mr.  Shand  shows  distinctly 
that  he  did  habitually  consult  her  legal  advisers,  and  that  of  course  he 
transacted  the  business  with  the  Commissioner  ;  and  from  her  confidence 
in  him,  and  the  ascendancy  which  he  seems  to  have  obtained  over  her, 
the  inference  is  hardly  to  be  avoided,  that  he  principally  directed  every- 
thing that  was  done.  The  evidence  of  the  witnesses,  Shirer  and  Wilkie, 
would  only  be  important  in  considering  whether  the  former  decree  and 
all  the  proceedings  should  not  be  set  aside,  as  having  been  obtained  by 
his  fraud.  And  for  this,  I  think  there  are  strong  grounds  ;  but  the  Chan- 
cellor has  not  come  to  this  conclusion,  nor  in  fact  does  the  question  appear 
to  have  been  made  before  him,  or  by  the  bill. 

With  respect  to  the  second  ground  of  appeal,  the  confirmation  of  the 
Commissioner's  report,  of  his  having  paid  to  the  plaintiff,  Sophia  C. 
Messervey,  her  share  of  the  estate,  was  not  an  adjudication.  "When  mat- 
ters in  issue  are  referred  to  the  Master,  and  he  reports  upon  them,  and 
the  report  is  confirmed,  then  the  report  is  made  the  decree  of  the  Court. 
But  the  fact  of  this  payment  was  not  referred  to  the  Commissioner,  or  in 
any  manner  in  issue.  It  was  not  a  judicial,  but  an  administrative  order, 
which  is  always  subject  to  the  control  of  the  Court — not  intended  to 
establish  the  fact  of  his  having  made  the  payment,  but  to  approve  of  it 
if  done,  and  to  protect  him  in  having  made  it.  When  a  report  of  sales 
is  made,  can  any  one  suppose  that  this  is  a  judgment  establishing  the  fact 
that  the  sales  have  been  made  ?  It  can  at  most  amount  to  no  more  than 
the  entry  of  satisfaction  upon  a  judgment  or  decree,  which  the  Court 
habitually  vacates  when  it  has  been  made  by  mistake,  or  there  is  any 
equity  to  require  it.  The  payment  was  not  in  fact  made.  When  we 
think  of  the  relation  in  which  the  i)laintiff  then  stood  to  the  defendant, 
regarding  him  as  her  affianced  husband,  he  must  know  very  little  of  the 


444  SOUTH    CAROLIXA    EQUITY   REPORTS.  [*580 

female  disposition,  who  does  not  know  that  she  trusted  everything  with 
implicit  confidence  to  his  direction.  He,  on  his  part,  assumed  the  char- 
acter of  a  husband  ;  he  would  of  course  assume  to  act  for  her,  nor  have 
I  any  doubt  but  that  the  report  and  order  were  made  by  his  procurement 
^r,Q-\-\  ^^^  direction.  Shall  he  be  permitted  to  take  advantage  *of 
■J  them  ?  He  was  her  agent,  and  his  act  might  have  bound  her  as 
to  third  persons,  but  he  cannot  claim  his  own  act  as  being  conclusive  be- 
tween himself  and  his  principal. 

Third. — Mrs.  Messervey  was  not  the  guardian.  The  order  of  the 
Court  was,  that  she  should  be  appointed  guardian,  upon  giving  bond  with 
sufficient  security.  This  was  never  done,  nor  does  it  appear  that  letters 
of  guardianship  were  issued.  She  therefore  had  no  authority  to  release 
the  mortgage,  even  if  it  had  come  into  her  possession.  But  the  mort- 
gage comes  before  the  Court  from  the  possession  of  the  Commissioner, 
Mr.  Hunt,  and  though  an  assignment  appears  endorsed  on  it,  yet  if  it 
was  not  delivered,  (which  is  to  be  inferred,)  the  assignment  could  operate 
nothing. 

Fourth. — The  defendant,  Mrs.  Messervey  is  responsible,  and  will  be 
made  so  by  the  decree.  If  the  plaintiffs  had  lost  their  security  by  the 
misconduct  of  the  officers  of  Court,  they  might  be  made  responsible. — 
But  if  the  security  be  not  lost — if  the  property  is  still  legally  bound  to 
satisfy  their  claims,  certainly  they  are  not  bound  to  have  recourse  to  the 
officers  in  the  first  instance. 

Fifth. — I  suppose  that  the  fifth  ground  refers  to  the  Commissioner's 
report,  of  his  having  paid  over  to  Sophia  C.  Messervey  her  share  of  the 
proceeds  of  the  estate,  by  which  she  is  thought  to  have  been  precluded 
from  claiming  any  thing  now.  But  I  have  already  disposed  of  that  re- 
port. Her  share  of  the  credit  part  of  the  sales  is  included  in  the  bond, 
and  in  fact,  I  suppose,  though  the  records  seem  to  bear  a  different  mean- 
ing, that  the  Commissioner  only  intended  to  report,  that  he  had  paid  over 
to  her,  her  share  of  the  cash  proceeds  of  the  sale. 

The  Chancellor,  however,  directs  the  property  in  the  hands  of  the  de- 
fendant, to  be  made  liable  for  all  that  shall  be  found  due  to  the  plaintiffs, 
on  account  of  their  shares  of  the  real  estate,  including  as  well  the  part 
that  was  said  to  be  received  in  cash,  as  the  amount  of  the  bond.  If  it 
depended  on  the  mortgage  merely,  it  w^ould  not  be  liable  beyond  the 
amount  of  the  bond.  This  renders  it  necessary  to  decide  on  the  effect  of 
the  Act  of  1791,  directing  that  when  land  is  sold  for  partition,  it  shall 
stand  pledged  for  the  purchase-money.  The  Act  provides,  that  the  party 
may  apply  at  his  option  to  the  Court  of  Equity  or  Common  Pleas,  for  a 
writ  of  partition  ;  directs  the  manner  of  proceedings,  and  enacts,  that  "if 
5ic^q9-i  it  shall  appear  to  the  Court,  that  it  would  be  more  for  the  *in- 
*'-'  tei'est  of  the  parties  that  the  same  should  be  sold,  then  they  shall 
direct  a  sale  to  be  made  on  such  credit,  and  on  such  terms  as  to  them 
shall  seem  right,  and  the  property  so  sold,  shall  stand  pledged  for  the 
payment  of  the  purchase-money."  The  Act  then  goes  on  to  provide, 
"that  the  judges  of  the  respective  Courts  shall  be,  and  they  are  hereby 
authorized  from  time  to  time,  to  make  such  rules  and  orders  as  may  be 
necessary  for  the  purpose  of  carrying  the  foregoing  clause  into  effect." 
It  was  urged,  that  this  does  not  apply  to  sales  made  by  the  Commis- 
sioner or  master.     But  in  every  ca.se  in  which  land  is  sold  for  partition 


*582]  CHARLESTON,   FEBRUARY,    1837.  445 

under  the  authority  of  the  Court  of  Equity,  the  sale  is  made  l)y  the 
Commissioner  or  master.  I  suppose  it  was  inteiuled  tliat  the  act  cannot 
apply  when  the  sale  is  made  on  the  recommendation  of  the  Commissioner 
merely,  no  writ  of  partition  having  issued.  But  I  do  not  perceive  the 
grounds  of  this.  The  practice  of  making  sales  on  the  recommendation 
of  the  Commissioner,  without  the  return  of  commissioners  in  partition,  is 
one  of  doubtful  propriety.  Yet  the  act  refers  it  to  the  Court,  to  deter- 
mine on  the  expediency  of  a  sale,  and  the  Court  of  Equity  would  of 
course  make  the  inquiry  for  this  pur])Ose  through  its  accustomed  ollicer. 
If  there  has  been  an  irregularity  in  not  having  a  previous  return  in  par- 
tition, I  do  not  perceive  that  this  can  deprive  the  parties  of  the  benefit 
which  the  law  expressly  gives  them. 

As  to  the  claim,  that  the  property  in  the  bands  of  the  defendant, 
Barelli,  should  contribute  only  rateably  with  the  rest  of  the  real  estate 
that  ought  to  have  been  mortgaged — the  defendant  is  entitled  to  more 
than  that.  He  has  a  right  to  the  benefit  of  his  mortgage,  as  against  his 
co-defendant,  Mrs.  Messervey.  She  purchased  all  the  real  estate,  and 
mortgaged  it  all.  Part  was  not  included  in  her  mortgage  to  Barelli,  but 
remains  as  I  understand  in  her  own  hands.  She  is  directly  the  debtor, 
and  this  property  should  be  first  sold,  and  applied  to  the  payment  of 
plaintiffs'  demands.  But  if,  as  suggested,  she  had  sold  part  of  the  prop- 
erty to  a  bona  fide  purchaser  without  notice,  this  could  not  deprive  the 
plaintiffs  of  the  right  to  be  satisfied  of  the  whole  of  their  claims  out  of 
the  property,  in  the  hands  of  a  purchaser  with  notice.  For  we  cannot 
avoid  agreeing  with  the  presiding  Chancellor,  that  Barelli  was  cognizant 
of  the  proceedings  in  equity ;  knew  how  every  thing  was  arranged,  and 
was  the  principal  agent  in  making  the  arrangements. 

The  last  ground  is  founded  on  a  supposition,  that  the  plaintiff, 
*has  no  case,  and  the  infants  not  being  properly  made  parties,  the  r^coo 
bill  must  be  dismissed.  The  infants  were  improperly  made  plain-  L 
tiffs  to  the  former  bill  for  partition.  Their  interests  were  adversary  to 
those  of  their  co-defendant  assuming  to  be  their  next  friend.  But  if  it 
were  regular  to  do  so,  it  would  not  benefit  the  defendants  to  vacate  the 
proceedings  as  to  them  on  that  ground.  They  are  properly  plaintiffs  to 
the  present  bill,  for  they  have  the  cause  of  complaint.  I  do  not  say  that 
they  might  not  have  sustained  a  bill  by  another  friend,  making  their  sis- 
ter a  defendant,  and  liable  if  they  should  fail  to  obtain  satisfaction  of  the 
present  defendants  ;  but  that  is  not  the  case  before  us.  According  to 
the  view  I  have  taken,  she  has  a  sufficient  case,  and  right  to  relief.  The 
infants  are  not  formally  and  technically  parties  plaintiffs  ;  but  the  Court, 
if  necessary,  would  permit  that  defect  to  be  supplied.  She  has  sued  for 
herself,  and  in  their  behalf.  It  may  be  true,  as  argued  by  counsel,  that 
none  but  a  creditor  or  legatee,  can  sue  on  behalf  of  himself  and  others. 
But  the  objection  must  be  taken  in  a  proper  time  and  manner. 

The  defendant's  demurrer  to  the  bill,  on  which  this  question  ought  to 
have  been  made,  has  been  overruled.  He  has  answered  to  the  l)ill  of 
"  Sophia  C.  Messervey,  for  herself,  and  as  a  guardian  ad  litem  of  her 
brothers  and  sisters."  He  has  taken  no  exception  to  this  manner  of  su- 
ing by  his  answer,  and  must,  therefore,  be  held  to  waive  the  objection. 

The  only  modification  which  it  appears  necessary  to  make  of  the  cir- 
cuit decree  is,  that  upon  the  coming  in  of  the  report  upon  the  account 


446  SOUTH   CAROLINA   EQUITY   REPORTS.  [*583 

directed  to  be  taken,  the  defendant,  Sophia  Messervey,  pay  to  the  plain- 
tiffs, respectively,  what  shall  be  found  due  to  them  on  account  of  her  ad- 
ministration of  their  father's  estate,  and  the  sales  of  the  personal  estate ; 
and  that  the  Commissioner,  or  Master,  do,  in  the  first  instance,  sell  all 
the  real  property  purchased  by  the  said  Sophia  Messervey,  and  mort- 
gaged to  the  Commissioner  in  Equity,  which  was  not  mortgaged  by  her 
to  the  defendant,  Joseph  A.  Barelli,  but  remains  in  her  hands,  and  apply 
the  proceeds  towards  the  satisfaction  of  the  plaintiffs'  claims  on  account 
of  their  share  of  the  proceeds  of  their  deceased  father's  real  estate  ;  and 
that  he  then  proceed  to  sell  the  property  in  the  hands  of  the  defendant, 
or  so  much  thereof  as  be  necessary  for  the  satisfaction  of  the  plaintiffs' 
said  claims,  in  pursuance  of  the  directions  of  the  decree  ;  and  it  is  or- 
dered and  decreed  accordingly. 

Chancellors  Johnson  and  Johnston,  concurred. 


^PiQAi  *Trustees  op  the  Episcopal  Church  of  Macon,  v.  Leroy  M. 
-I  Wiley  and  J.  B.  Rowland. 

A  bill  may  be  sustained  here  for  the  specific  performance  of  a  contract  for  tlie  sale 
of  lands  in  Georgia ;  and  defendant  was  decreed  to  pny  the  purchase-money  on 
condition  that  plaintiff  execute  and  tender  titles  to  be  approved  by  the  Commis- 
sioner. [*585] 

On  a  sale  of  land  at  auction,  the  auctioneer  is  the  agent  of  both  parties,  and  his 
memorandum  in  writing  is  sufficient  to  take  the  agreement  out  of  the  statute  of 
frauds.  [*590] 

And  when  the  auctioneer  made  a  pencil  memorandum  on  a  loose  slip  of  paper  at  the 
moment  of  sale,  and  shortly  afterwards  entered  the  sale  in  his  sales  book,  the 
latter  is  regarded  as  the  true  entry.  [*5y0] 

And  where  the  auctioneer  entered  the  sale  as  made  to  the  agent  the  contract  may  be 
enforced  against  the  principal  when  he  is  discovered ;  and  the  authority  of  the 
bidder  need  not  be  in  writing.  [^590] 

Heard  before  Chancellor  Johnston,  Charleston,  January  Term,  1836. 

The  contract  in  this  case,  relied  on  by  the  plaintiff's,  was  made  in 
Georgia,  between  citizens  of  that  State,  concerning  a  lot  in  the  town  of 
Macon.  The  lot  was  put  up  for  sale  on  account  of  the  plaintiffs,  by  T. 
P.  Bond,  an  auctioneer ;  and  was  knocked  off  to  one  Jesse  Smith,  as  the 
highest  bidder,  at  the  price  of  $2,450.  But  doubting  the  responsibility 
of  Smith,  the  auctioneer  required  another  name,  threatening  to  re-sell, 
when  J.  B.  Rowland,  one  of  the  defendants,  came  forward  and  assumed 
the  purchase,  at  the  price  of  $2,400.  The  auctioneer  then  entered  the 
name  of  Rowland,  as  the  purchaser,  with  a  pencil,  upon  a  loose  slip  of 
paper ;  and  after  returning  to  his  office,  entered  the  sale  in  his  sales' 
book. 

Rowland  having  referred  the  auctioneer  to  the  defendant,  Wiley — Wi- 
ley enters  into  the  treaty  and  arrangements,  whether  individually,  or  as 
one  of  the  concern  of  Wiley,  Baxter  &  Carter,  is  a  question  of  testi- 
mony. Upon  a  defect  in  the  title  being  discovered,  it  is  agreed  between 
the  parties  that  the  fulfilment  of  the  contract  should  be  suspended  until 
the  Legislature  of  Georgia  shall  make  good  the  title.     In  the  meantime, 


*584] 


CHARLESTON,   FEBRUARY,    1837.  447 


the  lot  depreciates  in  value,  in  consequence  of  which  the  tnisfees  desire 
to  make  Wiley  take  the  lot,  and  for  the  same  reason  Wiley  finally  declines 
taking  it.  Wiley  removes  to  South  Carolina,  and  the  hill  is  filed  against 
him  here,  to  compel  a  specific  performance  of  the  contract. 

Johnston,  Chancellor.  The  plaintiffs  aim  at  Wiley,  as  the  oidy  sol- 
vent defendant. 

It  would  be  sufficient  for  the  plaintiffs  to  have  made  out  a  contract 
with  Rowland,  either  as  the  agent  of  Wiley,  or  as  jointly  interested  with 
him  in  the  purchase  ;  either  would  give  them  a  decree  against  Wiley  — 
If  Rowland  was  Wiley's  agent  merely,  then  whatever  would  bind  the 
agent,  would  enure  to  the  plaintiffs,  as  against  the  principal.  If,  how- 
ever, Rowland  was  jointly  interested  with  Wiley,  they  are  both  bound, 
and  although  there  may  have  *been  other  persons  known  to  these  r:<:rnr 
two,  who  are  also  interested  in  the  purchase,  the  plaintiffs  are  not  ^ 
to  be  turned  round  to  them,  nor  obliged  to  resort  to  other  than  those 
whose  names  were  disclosed  to  them  when  the  sale  was  made.  Without 
therefore,  depending  upon  the  evidence  of  a  direct  contract  with  Wiley, 
if  Rowland  made  a  binding  contract,  that  is  enough  for  the  plaintiffs, 
provided  Rowland  was  any  way  concerned  with  Wiley  in  the  purchase, 
either  as  agent  or  a  partner.  That  there  w^as  the  connection,  of  either 
agency,  or  joint  interest  between  them,  the  evidence  leaves  no  doubt  — 
That  Rowland  made  a  valid  contract,  appears  to  me  equally  plain.  For 
admitting  that  the  auctioneer's  memorandum  does  not  take  the  case  out 
of  the  statute  of  frauds,  if  of  force  in  Georgia,  his  answer  overrules  his 
plea.  Both  have  answered.  Wiley  admits  the  sale,  the  terms  the  thing 
sold,  and  to  whom  the  auctioneer  knocked  down,  and  leaves  it  oidy  to  be 
proved  that  the  bidder  was  authorized,  and  by  whom  ;  and  the  authority 
of  the  bidder  need  not  be  in  writing. 

Two  things  only  in  the  case  have  created  any  difficulty  in  my  mind. 
The  first  was  the  case  of  Bacon  v.  Roach,  the  doctrine  of  whieli  I  have 
always,  although  joined  by  few  in  that  opinion,  approved.  But  that  has 
recently  been  overruled  by  the  Appeal  Court.  The  other  related  to  the 
power  of  this  Court  over  the  whole  contract.  The  land  sold  is  in  Georgia ; 
the  plaintiffs  are  not  entitled  to  a  decree,  but  upon  making  titles ;  and 
this  Court  has  not  power  to  compel  them.  But  I  can  give  them  a  de- 
cree dependent  upon  their  making  titles. 

It  was,  indeed,  contended  for  the  defendant,  that  this  Court  does  not 
possess  jurisdiction  over  any  contract,  into  which,  land  lying  beyond  the 
limits  of  the  State,  at  all  enters.  But  if  the  thing  which  is  required  to 
be  done,  is  that  which  the  defendaiit  can  do  in  this  State,  and  there  is  the 
obligation  of  law  upon  him  to  do  it,  the  cases  leave  no  doubt,  that  this 
Court,  acting  on  the  person,  and  not  in  rem,  is  not  only  competent,  but 
bound,  to  make  him  fulfil  his  obligations. 

Arglasse  v.  Muschamp,  1  Vernon,  75,  decided  by  Lord  Nottingham, 
in  1682,  is  an  example.  Muschamp,  by  a  fraud  in  England,  obtained  a 
rent  charge  on  the  Earle  of  Arglasse,  in  Ireland,  and  on  a  bill  brought 
in  England  where  Muschamp  was  found,  to  be  relieved  against  the  grant, 
he  pleaded  to  the  jurisdiction.  The  plea  was  overruled,  on  the  ground 
that  the  Court  acts  in  personam,  and  *a  release  of  the  grant  r:i-cQ/. 
decreed.     Here  the  fraud  was  perpetrated  in  England ;  but  that  ^ 


448  SOUTH   CAROLINA   EQUITY   REPORTS.  [*586 

makes  no  difference,  as  the  subsequent  cases  show.  For  although  the 
fraud  gave  the  jurisdiction,  it  was  never  supposed  but  once,  and  tliat  ia 
the  next  case  I  shall  mention,  that  there  was  a  local  venue  as  to  fraud. 

In  Kildare  v.  Eustace,  1  Yernon,  405,  tried  in  1686,  the  bill  was  to 
be  relieved,  touching  trusts  created  in  Ireland,  of  lauds  in  that  kingdom. 
Lord  Chancellor  Jeffries  doul)ted  his  jurisdiction,  because  the  trusts  were 
not  created  in  England,  and  thought  that  it  was  the  circumstance  of  the 
fraud  being  committed  in  England,  which  gave  jurisdiction  in  Arglasse  v. 
Muscharap.  But  he  was  so  clearly  wrong,  that  when  subsequently,  the 
same  point  was  argued  before  himself.  Lord  Chief  Justice  Beddingfield, 
and  Lord  Chief  Baron  Atkins,  not  only  were  the  Judges  of  opinion  that 
the  jurisdiction  was  complete,  but  the  defendant's  counsel  gave  up  the 
point. 

Roberdeau  v.  Rous,  1  Atk.  543,  brought  before  Lord  Hardwicke,  in 
1738,  was  the  bill  of  an  infant,  in  England,  against  the  defendant,  also  in 
England,  to  compel  the  delivery  of  possession  of  lands  in  St.  Christophei's, 
and  for  an  account  of  the  rents  and  profits ;  to  which  a  demurrer  was  put 
in.  The  Court  held  that  a  plea  was  the  proper  form  of  defence,  and 
therefore  overruled  the  demurrer,  but  entered  into  a  series  of  observations, 
showing  its  clear  conviction,  that  whenever  the  Court  can  effectually  act 
in  pe7-sonam,  it  has  jurisdiction. 

Foster  v.  Yassall,  3  Atk.  587,  which  came  also  before  Lord  Hardwicke, 
in  1747,  turned  upon  the  informality  of  the  plea  put  in  ;  but  his  lordship, 
while  he  overruled  the  plea,  for  want  of  averments,  took  occasion  again 
to  repeat  the  doctrine,  that  the  Court  must  act,  so  far  as  it  can  act,  in 
jjersonam.  The  case  before  him  was,  among  other  things,  for  an  account 
of  estates  in  Jamaica,  the  executor  being  in  England. 

Penn  v  Baltimore,  1  Yes.  444,  was  decided  by  Lord  Hardwicke,  in 
1750,  after  much  consideration,  aided  by  a  powerful  and  sifting  argument 
of  the  case,  the  weight  of  which  so  impressed  him,  that  he  declared  it  was 
worthy  the  consideration  of  a  Roman  Senate.  It  was  a  bill  against  Lord 
Baltimore,  residing  in  Eugland,  to  compel  the  specific  execution  of  an 
agreement  settling  the  boundaries  between  Pennsylvania  and  Maryland. 
The  Court  decreed  the  execution,  disclaiming  all  power  to  act  in  rem, 
but  only  in  personam. 

5j.ro>, -|  *In  Cranstown  v.  Johnston,  3  Yes.  jr.  170,  which  came  before 
-^  the  Master  of  the  Rolls,  in  1796,  the  defendant  had,  while  pretend- 
ing to  treat  with  the  plaintiff  for  payment  of  a  demand  he  held  on  him, 
clandestinely  obtained  a  judgment  in  St.  Christophers,  against  the  plaintiff, 
who  was  not  resident  there,  under  which,  he,  with  much  secrecy  and  ex- 
pedition, sold  and  purchased  a  rent  charge  in  reversion  which  the  plaintiff 
held  on  property  in  that  colony.  The  Master  of  the  Rolls  declared  that 
he  must  forget  the  name  of  the  Court  in  which  he  sat,  before  he  could 
hesitate  to  relieve  in  such  a  case ;  asserted  the  jurisdiction,  when  it  could 
operate  in  personam,  and  decreed  a  re-conveyance,  deducting  the  defend- 
ant's debt  and  expenses. 

Here  is  a  steady  current  of  authorities,  to  which  twice  as  many  might 
be  added,  all  to  the  same  effect.  I  say  to  the  same  effect,  for  although 
some  of  the  Judges  did  mix  up  with  their  reasons  in  the  colonial  cases,  a 
notion  that  the  jurisdiction  of  the  Court  was  increased  by  the  supremacy 


*587]  CHARLESTON,    FEBRUARY,    1837.  -149 

of  Eng-land,  yet  it  is  plain,  that  that  consideration  was  not  at  all  neces- 
sary in  their  decisions,  nor  formed  the  ground  of  them. 

The  case  of  Pike  v.  Hoare,  Ambler,  428,  tried  iu  1763,  and  relied  on 
by  defendant's  solicitor,  is  not  at  all  calculated  to  sliake  the  vveigiit  of 
these  authorities.  The  bill  was  to  have  an  issue  of  dcimaril  vel  non, 
ordered  and  tried  in  England,  of  a  will  made  there,  but  charging  the  tes- 
tator's debts  on  lands  in  Pennsylvania.  The  heir  who  filed  the  bill  and 
contested  the  will,  had  withdrawn  all  opposition  to  probate  in  the  Eccle- 
siastical Court,  and  had,  without  opposing  it,  suffered  a  decree  to  per- 
petuate testimony  to  pass  ;  in  consequence  of  which,  the  executors  and 
devisees  had  paid  out  above  five  hundred  pounds  towards  the  debts. 
Lord  Henley,  who  heard  the  case,  although  he  confesses  he  built  his 
opinion  materially  on  the  circumstance  that  the  land  lay  abroad — yet, 
unhesitatingly  declared,  that  the  plaintiff's  conduct  was  such,  that  if  the 
land  was  in  England,  he  would  not  have  directed  the  issue — that  he  had 
completely  forfeited  his  equity. 

I  feel,  therefore,  warranted  in  decreeing  for  the  plaintiffs  upon  their 
making  a  conveyance;  although  I  would  not  be  prepared  to  go  the  length 
of  those  decisions,  which  hold  that  a  defendant  within  the  jurisdiction  may 
be  compelled  to  make  conveyances  or  deliver  possession  of  lands  in  foreign 
parts.  That  seems  a  very  *hard  doctrine  ;  and  if  the  plaintiffs  rji^coq 
were  in  this  State,  and  the  bill  was  against  them  to  compel  them  ■- 
to  convey,  I  would  hesitate  much.  I  think  I  would  not  sustain  such  a 
bill.  But  it  stops  very  far  short  of  that,  to  give  them  a  decree  upon  con- 
dition of  doing  that  voluntarily,  which  I  would  not  compel  them  to  do  ; 
leaving  them  to  take  or  refuse  the  decree  at  their  option. 

Both  Rowland  and  Wiley  are  before  the  Court.  One  of  them  lives  in 
this  State — both  have  answered. 

But  to  return  to  a  point  upon  which  I  remarked  at  the  outset.  I  said 
it  was  immaterial  to  the  plaintiffs,  whether  Rowland  contracted  as  agent, 
or  partner,  of  Wiley.  And  so  it  is.  But  it  is  material  to  Rowland  ;  for 
if  he  acted  as  agent  merely,  the  whole  contract  should  be  thrown,  as  be- 
tween him  and  Wiley,  on  Wiley.  Whereas,  if  they  were  jointly  interested, 
they  are  both  and  each  liable  to  the  plaintilfs,  and  the  conveyance  should 
be  made  to  them  jointly,  leaving  them  to  settle  the  matter  between  them- 
selves. But  Rowland's  answer  admits  that  what  was  done,  was  done 
towards  a  joint  purchase,  and  he  may  be  allowed  to  speak  for  himself, 
when  he  thereby  takes  a  purchase  on  his  own  shoulders  So  that  the 
Court  will  leave  it  to  the  defendants  to  determine  whether  the  decree  shall 
be  that  Wiley  take  the  titles  and  pay  the  money  as  i)rincipal  of  Rowland, 
or  t^'hether  the  conveyance  shall  be  to  them  jointly,  and  that  both  shall 
be  liable  for  the  money.  Whatever  the  determination  may  be,  it  is  not 
intended  that  they  should  be  thereby  deprived  of  the  right  of  appeal. 
The  decree  iu  either  case  will  be,  that  the  titles  be  deposited  with  the 
Register  and  approved  by  the  Master,  before  payment  of  the  price,  and 
that  within  a  given  time.  When  their  determination  is  made  let  an  order 
be  proposed.     (Decree  filed  4  January,  1836.) 

(January  18,  1836.)  The  decree  dated  the  4th  inst.,  having  left  to  the 
defendants,  the  choice  of  taking  a  title  jointly  or  the  said  Lcroy  M.  Wiley 
alone,  and  no  choice  being  made — it  is  ordered  and  decreed,  that  upon 
the  plaintiffs  executing  and  delivering  to  the  defendants,  a  deed  for  the 


450  SOUTH   CAROLINA   EQUITY   REPORTS.  [*588 

lot  No.  5,  in  square  41,  in  the  town  of  Macon,  to  be  approved  by  the 
Commissioner  of  this  Court,  and  tendered  to  the  defendants,  or  to  their 
solicitor  in  this  cause,  within  two  months  from  this  date,  the  defendants 
do  pay  to  the  plaintiffs  the  sum  of  two  thousand  four  hundred  dollars, 
with  interest  on  sixteen  hundred  dollars,  from  the  seventeenth  day  of 
January,  eighteen  hundred  and  thirty-two  :  and  on  eight  hundred  dol- 
^_„„-,  lars,  from  the  seventeenth*  day  of  July,  in  the  year  eighteen  hun- 
-1  dred  and  thirty-two,  and  the  costs  of  this  suit. 
The  defendant  Wiley  appeals  from  the  decree  made  in  the  case,  upon 
the  following  grounds  : — 

1.  Because  his  Honor  decreed,  that  the  plea  of  the  statute  of  frauds 
was  overruled  by  the  answer,  and  therefore  could  not  be  maintained. 

2.  Because  his  Honor  decreed,  that  the  Court  possessed  jurisdiction  in 
the  case,  although  the  contract  was  proved  to  have  been  made  in  another 
State,  between  the  citizens  of  another  State,  concerning  lands  lying  in 
another  Stale. 

3.  Because,  if  the  contract,  in  consequence  of  the  removal  of  the 
defendant  into  this  State,  is  to  be  considered  as  having  been  made 
between  a  citizen  of  this  State,  and  citizens  of  another  State,  the  suit 
ought  to  have  been  instituted  in  the  Courts  of  the  United  States. 

4.  Because  his  Honor  decreed  a  specific  performance  against  the 
defendant,  although  the  testimony  and  answers  proved  that  he  was 
interested  in  the  contract  only  as  one  of  the  mercantile  firm  of  Wiley 
Baxter  &  Carter 

5.  Because  his  Honor  decreed,  that  although  the  remedy  was  not 
mutual,  and  the  Court  had  no  power  to  enforce  performance  of  the  con- 
tract on  the  part  of  the  plaintiffs  who  were  without  the  jurisdiction  of  the 
Court,  a  specific  performance  should  be  decreed  against  the  defendant. 

6.  Because  time  is  material  in  enforcing  a  contract  by  a  Court  of 
Chancery  when  the  circumstance  of  the  parties  are  changed,  and  the 
property  in  this  case  having  depreciated  during  the  period  of  delay  on 
the  part  of  the  plaintiffs,  a  specific  performance  of  the  contract  ought  not 
to  be  decreed  against  the  defendant, 

A.  31.  Smith,  for  the  motion. 

Petigru,  contra. 

Chancellor  Harper  delivered  the  opinion  of  the  Court, 
The  second  and  sixth  grounds  of  the  motion,  which  relate  to  the  points 
chiefly  considered  by  the  Chancellor  below,  have  been  abandoned. 

With  respect  to  the  first  ground,  we  do  not  think  it  necessary 
*^f)ni  *^^  determine,  whether  the  answer  overrules  the  plea  ;  because  we 
-^  are  of  opinion,  that  there  was  a  sufficient  memorandum  in  writing 
to  take  the  agreement  out  of  the  statute  of  frauds,  the  auctioneer  being 
regarded  as  the  agent  of  both  parties.  It  is  agreed,  with  respect  to 
goods  sold  at  auction,  he  must  be  so  regarded  ;  but  some  of  the  earlier 
cases,  determined  that  this  could  not  be  extended  to  lands. — Stansfield  v. 
Johnson,  1  Esp.  Ni.  Pri.  101  ;  Buckmaster  v.  Harrop,  7  Yes  341. 
But  Lord  Eldon  expressed  a  different  opinion,  in  Coles  v.  Trecothick, 
9  Ves.  234,  which  has  been  followed  ever  since — by  Lord  Erskine  in  the 
same  case,  of  Buckmaster  v.   Harrop,    13  Ves.  456,   and  by  Sir  Wm. 


*590]         CHARLESTON,  FEBRUARY,  1837.  451 

Grant,  in  Kenneys  v.  Proctor,  3  Yes.  &  B.  57.  He  states  that  he 
should  himself  have  been  of  a  different  opinion,  but  was  governed  by  the 
decisions  of  the  Court  of  Common  Pleas,  in  Emraerson  u.  Heclis,  2 
Taunt.  38,  and  White  v.  Proctor,  4  Taunt,  209,  to  the  same  effect  with 
the  equity  cases  cited.  The  same  thing  has  been  decided  in  New  York. 
— M'Corabe  v.  Wright,  4  Johns.  Ch.  Rep.  659.  I,  myself,  expressed  a 
different  opinion,  in  a  case  decided  by  me  as  Chancellor  ;  but  upon  its 
being  carried  up  to  the  Court  of  Appeal,  that  Court  overruled  ray 
opinion  ;  so  that  the  question  may  be  regarded  as  settled. 

Then  an  objection  was  taken  to  the  sufficiency  of  the  memorandum,  as 
not  setting  forth  sufficiently  the  description  of  the  property,  and  the  terms 
of  sale.  I  do  not  understand  the  objection  to  apply  to  the  entry  in  the 
auctioneer's  book,  but  to  the  pencil  memorandum  made  on  the  land  at 
the  moment  of  sale,  which  it  was  thought  constituted  the  true  memo- 
randum. But  this  is  contrary  to  the  universal  understanding.  The 
entry  in  the  auctioneer's  book  was  made  as  early  as  practicable.  If  a 
memorandum  of  sales  be  made  by  a  shopkeeper,  in  pencil,  or  on  a  slate, 
and  afterwards  entered  in  the  day  book,  the  latter  is  always  regarded  as 
the  original  entry. 

Then  it  was  argued,  that  having  contracted  and  dealt  with  Rowland, 
the  plaintiffs  have  no  recourse  against  Wiley.  But  it  is  perfectly  well 
settled  that  if  a  party  contracts  with  an  agent,  not  knowing  him  to  be 
agent,  and  afterwards  discovers  the  principal,  he  may  afterwards  enforce 
the  contract  against  the  principal.  See  Paterson  v.  Gaudasequi,  15 
East,  62,  and  Railton  v.  Hodges,  4  Taunt.  576,  &c.  There  is  a 
difference  if  a  party  contracts  with  an  agent,  knowing  of  the  principal. 
There,  if  after  he  knows  the  *principal,  he  continues  to  deal  ex-  r^^p^c^i 
clusively  with  the  agent,  and  gives  the  credit  to  him,  the  principal  ^ 
will  be  discharged.  Addison  v.  Gandasqui,  4  Taunt.  574.  Here,  how- 
ever, the  plaintiffs  dealt  with  the  principal  from  the  time  they  discovered 
him.  The  case  of  Kemeys  v.  Proctor,  seems  to  have  been  in  this  respect 
precisely  like  the  present.  The  auctioneer  entered  the  sale  as  made  to 
the  agent,  and  the  contract  was  enforced  against  the  principal.  It  is 
clear  that  the  auctioneer's  authority  need  not  be  in  writing. — See  Lord 
Eldon  in  Coles  v.  Trecothick. 

The  third  ground  was  not  urged  in  argument. 

The  fourth  ground  involves  matter  depending  on  testimony,  with  re- 
spect to  which  we  have  no  reason  to  distrust  the  Chancellor's  conclusion. 
The  fifth  ground  was  not  urged,  and  seems  to  be  without  fouu(hition. 
Chancellors  Johnson  and  Johnston,  concurred. 


Francis  B.  Fogg,  and  Mary,  his  Wife,  v.  John  Izard  Middleton 
and  Henry  Middleton. 

Defendant  J.  I.  M.,  with  a  view  to  prevent  family  discord,  nnd  to  relieve  himself 
from  the  suspicion  of  having  exercised  undue  influence  over  his  mother,  who  had 
by  deed  and  will  given  him  the  bulk  of  her  estate,  executed  bonds  in  trust  to  his 
brother  for  the  payment  of  certain  sums  for  the  benefit  of  the  eldest  duughter  of 


452  SOUTH   CAROLINA   EQUITY   REPORTS.  [*59l 

each  of  his  sisters  ;  left  them  with  his  brother,  and  having  informed  the  parties 
interested  of  this  proceeding,  went  to  Europe  where  he  still  remains,  leaving, 
however,  a  large  estate  herein  the  care  of  his  brother;  the  bonds  meanwhile 
remaining  unpaid,  and  the  trustee  having  taken  no  measures  in  relation  to  them: 
Held,  that  there  was  sufficient  evidence  of  delivery  ;  that  the  bonds  were  irrevo- 
cable, and  sustained  by  a  sufficient  consideration,  and  the  trustee  was  decreed  to 
account    [*591] 

Heard  at  Charleston,  April  Terra,  1835. 

Chancellor  De  Saussure,  who  presided,  pronounced  the  following 
decree,  which  contains  a  full  statement  of  the  case  : 

It  is  proper  to  state  the  relative  situation  of  the  family,  and  the  cir- 
cumstances of  the  case,  which  may  be  summed  up  in  a  short  compass. 
Mrs.  Mary  Middleton  was  the  widow  of  Mr.  Arthur  Middleton,  the 
illustrious  signer  of  the  Declaration  of  Independence,  and  its  vindicator 
with  his  sword.  He  died  intestate,  after  the  termination  of  the  revolu- 
tionary war,  but  prior  to  the  statute  of  February  1791,  abolishing  the 
rights  of  primogeniture,  and  his  real  estate  descended  to  his  eldest  son, 
^p.q9-|  Mr.  Henry  Middleton,  one  of  *the  defendants  ;  whilst  his  personal 
^-^  estate  was  distributable  by  law,  among  his  widow  and  children, 
consisting  of  his  two  sons,  iMr.  Henry  Middleton,  and  ;Mr.  J.  I.  Middle- 
ton,  and  his  daughters,  who  respectively  intermarried  with  Mr.  Joseph 
Manigault,  Mr.  Henry  Izard,  Mr.  Henry  M.  Rutledge,  Mr.  Daniel  E. 
Huger,  and  Mr.  Blake 

Mrs.  Mary  Middleton,  in  her  lifetime,  conveyed  by  deed  to  her  second 
son,  Mr.  J.  I.  Middleton,  her  large  real  estate  ;  and  by  a  will,  pur- 
porting to  be  her  last  will  and  testament,  disposing  other  personal  estate, 
bequeathed  the  greater  part  thereof  between  her  two  sons,  and  gave 
considerable  pecuniary  legacies,  (as  is  alleged,  and  which  does  not  seem 
to  be  contradicted,)  to  each  of  her  daughters  (except  Mrs.  Manigault,  who 
was  dead),  Afterwards,  she  executed  another  will,  and  died  in  1814, 
leaving  the  same  in  full  force,  by  which  she  disposed  of  the  bulk  of  her 
personal  estate  to  her  two  sons,  subject  to  certain  legacies,  and  par- 
ticularly a  legacy  to  each  of  her  daughters,  of  £100  sterling,  which  was 
greatly  below  the  legacies  under  the  former  will. 

The  personal  estate  of  Mrs.  Middleton  was  appraised  at  upwards  of 
seventy-one  thousand  dollars. 

Some  discontents  naturally  arose  in  the  minds  of  daughters  so  slightly 
provided  by  a  wealthy  parent,  who  bestowed  so  large  a  fortune  on  her 
sons  ;  for  notwithstanding  the  legal  right  of  the  parent  to  dispose  of  her 
estate  according  to  her  judgment,  her  preference,  or  even  her  caprices, 
the  moral  sense  of  the  community  and  the  feelings  of  families,  revolt  at 
any  very  great  disproportion  made  among  children,  where  no  misconduct 
exists,  or  is  alleged  to  exist.  These  discontents  reached  the  ears  of  Mr. 
J.  I.  Middleton,  with  the  exaggerated  report,  that  the  use  or  the  abuse 
of  his  personal  influence  over  an  aged  mother,  had  produced  the  effect  of 
diminishing  her  bounty  to  her  daughters,  by  her  last  will  and  testament, 
to  his  benefit.  His  delicacy  revolted  at  the  supposed  imputations,  and 
he  resolved  to  vindicate  himself  from  them  by  voluntarily  executing 
bonds,  to  each  of  his  sisters,  to  the  amount  they  would  have  been  entitled 
to  under  the  former  will  of  their  mother  ;  and  thus  relieve  his  name  and 
character  from  the  suspicion  of  having  exercised  an  undue  influence  over 


*592]  CHARLESTON,   FESRUART,    1837.  453 

bis  mother,  for  lus  own  benefit,  and  to  the  prejudice  of  his  sisters.  He 
according-ly  executed  bonds  to  them,  or  their  husbands,  for  the  sums  to 
which  they  would  have  been  entitled  under  the  older  will  of  their  mother 
and  transmitted  them  to  their  respective  husbands.  These,  it  seems, 
were  *retnrned  by  all  of  them,  except  Mr.  Henry  Izard,  who,  it  r^^rqo 
seems,  consented  to  receive  it,  but  in  a  modified  form,  as  appears  ^ 
by  the  two  letters  of  Mr.  J.  I.  Middleton,  of  the  4th  and  17th  May, 
1815,  to  Mr.  Henry  Izard,  in  which  he  speaks  fully  on  this  subject ;  and 
explains  his  views  and  intentions,  his  motive  and  his  acts,  in  relation  to 
all  his  sisters.  Mr.  J.  I.  Middleton,  in  pursuance  of  these  intentions, 
executed  bonds,  in  trust  to  his  brother,  Mr.  Henry  Middleton,  with  con- 
ditions for  the  payment  of  certain  sums  for  the  eldest  daughter  of  each  of 
his  sisters,  and  placed  them  in  the  possession  of  his  brother,  Mr.  Henry 
Middleton.  He  then  went  to  Europe,  about  1817,  and  has  remained 
there  ever  since,  leaving  his  estate,  including  the  personal  estate,  the 
slaves  derived  from  his  mother's  will,  in  the  hands  of  his  brother,  Henry, 
as  his  attorney  and  agent :  and  to  apply  the  income  of  the  estate  to  the 
payment  of  the  debts  of  her  estate,  and  the  legacies  under  her  will.  The 
debts  have  been  paid,  and  the  bond  to  Mr.  Izard's  family  has  been  paid, 
but  no  payment  has  been  made  on  the  bond  for  Miss  Mary  Rutledge 
now  the  wife  of  Mr.  Fogg,  the  plaintiff.  After  many  years,  applications 
were  made,  by  letters,  to  Mr.  Henry  Middleton,  as  the  agent  and 
attorney  of  Mr.  J.  I.  Middleton,  for  payment,  which  applications  being 
unattended  to,  the  bill  was  filed  in  this  Court  which  makes  this  case. 

The  defence  set  up  against  the  claim  is  stated  fully  in  the  answers.  In 
substance,  it  is,  that  the  bond,  though  signed  and  sealed  was  not  delivered, 
but  kept  some  time  by  the  obligor  and  then  deposited  for  safe  keeping 
with  his  own  agent  and  attorney.  That  it  was  voluntary,  and  without 
consideration,  and  cannot  be  enforced  in  a  Court  of  Equity.  And  that 
it  was  conditional,  as  to  the  time  of  payment,  which  was  to  be  made  after 
the  debts  and  legacies  were  paid,  without  interest  till  a  year  after  those 
payments. 

The  first  question,  then,  is,  whether  the  bond  in  question,  is  obligatory 
on  J.  I.  Middleton,  so  that  the  same  can  be  enforced  in  this  Court  ? 

It  is  proven  by  Mr.  Bee,  to  have  been  duly  executed,  and  he  was  a 
subscribing  witness.  It  was  a  voluntary  bond,  in  the  ordinary  sense,  as 
there  was  no  pecuniary  consideration.  But  it  was  given  upon  full 
deliberation,  not  lightly,  and  upon  a  consideration  of  tlie  highest  import 
to  the  feelings  of  the  obligor.  He  saw,  and  he  felt,  that  the  extraordinary 
preference  given  to  him  by  his  mother,  by  the  conveyance  of  a  great  real 
estate,  and  bequest  of  a  large  ^personal  estate,  to  the  disinherison  r^-qi 
of  his  sisters,  highly  estimable  in  themselves,  and  who  had  never  ^ 
given  offence  to  their  mother,  (for  that  is  not  pretended,)  had  produced 
a  painful  effect  on  their  minds.  They  were  disappointed  of  reasonable 
expectations,  and  humiliated  by  parental  neglect  amounting  to  a  marked 
preference  of  another  child,  and  he  felt  that  something  was  due  to  their 
wounded  feelings;  and  to  quiet  his  own  mind,  and  to  secni'e  himself  from 
suspicions,  if  not  imputations  of  an  undue  influence  exercised  over  the 
mind  of  his  aged  mother,  he,  himself,  therefore,  proposes  to  give  them 
bonds,  equivalent  to  their  expectation  under  a  former  will.  He,  himself, 
in  his  letter  to  Mr.  Izard,  puts  it  on  that  ground.  He  valued  family 
YoL.  I.— 52 


454  SOUTH   CAROLINA   EQUITY   REPORTS.  [*594 

concord,  and  propitiates  it  by  doing  voluntarily  an  act  which  he  felt  to 
be  a  duty  to  himself,  and  did  not  consider  it  a  bounty.  He  disclaims  the 
idea,  over  and  over  again,  that  it  is  to  be  considered  by  his  nieces,  as 
conferring  a  pecuniary  obligation  on  them.  This,  then,  is  a  good  con- 
sideration on  which  the  bond  can  be  supported. 

It  was,  however,  urged,  that  it  was  not  delivered  to  Mr.  Henry  Middle- 
ton,  as  trustee  for  the  persons  intended  to  be  benefitted,  but  as  his  agent 
for  safe  keeping.     And  that  Mr.   Henry  Middleton  did  not  accept  the 
trust ;  and,  therefore,  the  act  was  not  perfected.     Mr.  J.  I.   Middleton 
himself,  under  his  own  hand,  states  how  he  considered  the  transaction  at 
the  time,  and  how  his  brother  considered  it.     He  says,  in  his  letter,  "  In 
order  to  effect   this  purpose,  my  brother  has  consented   to  become  a 
trustee,  for  bonds,  to  the  amount  of  the  supposed  deficit  which  I  have 
drawn  in  favor  of  my  eldest  niece,"  &c.    "  I  had  it  drawn  in  this  manner, 
(stating  the  manner,)  in  order  to  avoid  the  possibility  of  its  lapsing  by 
any  accident  to  Mary,  for  whom  it  is  intended.     Again,  a  circumstance 
stated,  induces  me  to  put  them  all  on  the  same  footing,  and  render  the 
deed  irrevocable,  (as  ray  determination  always  has  been,)  through  my 
brother,"     In  the  letter  of  ITth  May,  1815,  he  says,  "A  bond  drawn  in 
the  manner  you  mention,  shall  be  substituted  for  that  now  in  the  jJ0.s.ses- 
sion  of  my  brother."    Surely,  these  various  expressions  denote  a  finished 
act  irrevocable ;  and  that  his  brother  was  the  trustee,  and  had  consented 
to  act.     Can  it  be  permitted  to  the  defendant,  to  weaken  the  force  or 
change  the  character  of  this  transaction,  and  these  clear  and  positive 
declarations,  by  recollections  at  the  end  of  twenty  years,  stated  by  the 
defendant  himself  with  proper  caution,  as  uncertain  ?     Assuredly  not. 
,,,.„.-,  The  *  Court  must  and  will  look  to  the  acts  and  declarations  of  the 
-'  party  at  the  time  of  its  origin,  and  not  to  faint  and  doubtful  and 
ancient  recollections  and  so  with  regard  to  Mr.  Henry  Middleton,  the 
defendant.'     In  his  answer,  after  twenty  years,  and  after  being  engaged 
in  great  public  affairs  abroad,  which  drew  his  attention  from  minor  affairs 
at  home,  it  is  stated,  so  as  to  leave  it  doubtful  or  questionable,  whether 
the  bonds  were  placed  in  his  hands  as  trustee  or  as  agent  of  his  brother, 
and  whether  he  accepted  the  trust.     His  brother,  Mr.  J.  I.  Middleton, 
unqualifiedly  says  he  had  consented  to  serve  as  trustee.     Could  he  be 
mistaken,  when  speaking  at  the  very  time  of  the  transaction  ?     Or,  is  it 
not  more  likely,  that  a  recollection,  at  such  a  distance  of  time,  should  be 
incorrect  ?     The  evidence,  too^  of  Mrs.  Rutledge,  a  lady  of  the  most 
respectable  character,  drawn  from  her  reluctantly  and  painfully,  taken  in 
connection  with  Mr.  J.  I.  Middleton's  letter,  is  conclusive.     She  testifies, 
"  that  in  the  month  of  Oct.  1819,  she  passed  a  few  days  with  her  brother, 
Mr.  Henry  Middleton,  at  his  residence  near  Washington.     During  her 
stay,  and  the  morning  preceding  the  day  of  her  departure,  he  made  her  a 
communication  respecting  a  bond  executed  by  her  brother,  J.  I.  Middle- 
ton.     He  stated,  that  as  they,  the  witness  and  himself,  might  be  separate 
many  years,  he  requested  her  to  recollect,  that  among  other  bonds  left 
with  him  by  his  brother,  J.  I.  Middleton,  there  was  one  executed  to  him 
by  his  said  brother,  for  the  benefit  of  her  (witness')  daughter,  Mary,  now 
Mrs.   Fogg,  for  one  thousand  pounds  sterling,  and  that  if  any  thing 
should  happen,  she  must  remember  that  his  estate  would  be  liable  for  it. 
She  understood  that  he  was  perfectly  acquainted  with  the  nature  of  the 


*595]  CHARLESTON,    FEBRUARY,    1837.  455 

bond,  and  regarded  his  commnnication  as  intended  to  inform  her  that  he 
held  the  bond,  in  trust  for  lier  daughter,  Mary,  although  she  does  not 
remember  that  the  word  trustee  was  used.  The  amount  of  the  bond  was 
mentioned,  but  she  does  not  remember  the  date. 

The  witness  was  under  the  impression  that  the  other  bonds  alluded  to, 
were  of  a  similar  nature  to  the  one  he,  Mr.  H.  Middleton,  desired  her  to 
bear  in  mind.  She  supposes  this  impression  arose  from  her  having  heard 
that  her  brother,  Mr.  J.  I.  Middleton,  had  given  bonds  in  favor  of  the 
children  of  her  deceased  sister,  Mrs.  Henry  Izard.  The  counsel  for  the 
defendant  supposes  that  Mrs.  Pvutledge  must  be  mistaken  in  her  evidence. 
But,  surely  more  reliance  is  to  be  placed  on  the  plain,  and  positive,  and 
affirmative  *evidence  of  a  witness,  entitled  to  the  highest  credit,  r-.(:cqp 
who  gives  particulars  of  time  and  place,  and  the  occasion  of  the  '- 
coram uication,  on  a  subject  to  which  her  attention  was  particularly 
drawn,  a  few  years  after  the  execution  of  the  bond,  than  on  the  negative 
recollections  of  a  defendant,  even  of  the  same  high  character,  after  a  lapse 
of  twenty  years. 

In  my  judgment,  the  bond  was  duly  executed,  was  irrevocable,  was 
placed  in  the  hands  of  Mr.  Henry  Middleton,  as  trustee,  and  he  was 
bound  to  take  care  of  the  interests  of  the  cestui  que  use.  This  is  the 
equity  and  justice  of  the  case  ;  and  is,  I  think,  amply  supported  by  the 
authorities  cited  by  the  counsel  in  the  argument. 

The  only  question  which  remains,  is,  when  it  shall  begin  to  bear 
interest.  The  condition  of  the  bond  is,  that  the  sura  of  one  thousand 
pounds  sterling  should  be  paid  in  three  equal  annual  instalments,  to  com- 
mence from  the  day  when  the  debts  and  legacies  charged  on  the  estate  of 
the  late  Mrs.  Mary  Middleton,  mother  of  the  said  J.  I.  Middleton,  shall 
have  been  paid  and  released,  with  annual  interest  on  the  said  sura  ;  which 
interest  shall  commence  from  the  end  of  one  year,  after  payment  of  debts 
and  legacies,  as  aforesaid.  The  plaintiffs  allege,  that  the  income  of  the 
estate  was  sufficient  to  have  paid  the  debts  and  legacies,  some  time  in  the 
year  1820,  and  that  the  interest  should  commence  one  year  after.  The 
defendants  insist,  that  the  income  of  Mrs.  Mary  Middleton's  estate,  broke 
in  upon  as  it  was,  by  a  defaulting  agent,  was  not  sufficient  to  have  paid 
the  debts  and  legacies  of  her  estate,  before  about  the  year  1830,  or  '31  ; 
conseqently  no  interest  is  chargeable  earlier.  This  is  a  point  which  can 
only  be  settled  by  an  account  which  must  be  gone  into,  unless  the  parties 
shall  agree  and  fix  upon  an  intermediate  tirae.  It  appears  that  the  per- 
sonal estate  bequeathed  by  Mrs.  Middleton  to  her  son,  Mr.  J.  I.  Mid- 
dleton, remains  in  the  hands  of  Air.  Henry  Middleton. 

It  is  therefore  ordered  and  decreed,  that  the  sura  of  one  thousand 
pounds  sterling,  the  condition  of  the  bond  in  question,  be  paid  out  of  the 
said  estate,  together  with  interest ;  and  that  it  be  referred  to  the  Com- 
missioner, to  examine  tho  accounts  of  the  income  of  the  said  estate,  from 
the  year  1815,  and  to  ascertain  the  debts  and  legacies  due  by  the  said 
estate;  and  to  report  when  the  income  was  sufficient  to  have  paid  the 
said  debts  and  legacies ;  and  to  calculate  interest  on  the  said  bond,  from 
one  year  after  the  period  *when  said  debts  and  legacies  could  have  r^cq^ 
been  paid,  which  shall  be  paid  out  of  the  said  estate.  ^ 

On  further  consideration  of  this  case,  it  appears  to  me  proper  to  add, 
that  after  the  distinct  and  positive  declaration,  in  writing,  by  J.  I.  Mid- 


456  SOUTH    CAROLINA    EQUITY    REPORTS.  [*597 

dleton,  that  his  brother  had  consented  to  accept  tlie  trust  in  question,  and 
after  the  avowal  of  the  trust  by  Mr.  Henry  Middleton,  testified  by  Mrs. 
S.  S.  Rutledge,  it  was  not  in  his  power  to  disclaim  the  trust.  He  had 
assumed  the  trust,  and  acted  under  it,  by  paying  the  money  on  one  of  the 
bonds  to  the  family  of  Mr.  Izard  ;  and  that  without  any  other  instruc- 
tions from  Mr.  J.  I.  Middleton,  but  ou  his  general  authority.  Again, 
Mr.  J.  I.  Middleton  says,  in  his  answer,  that  he  did  not  advise  his  bro- 
ther to  take  the  ground  of  defence  assumed  in  the  answer,  to  wit :  That 
the  bond  was  voluntary  and  revocable,  was  never  formally  delivered,  and 
that  Mr.  Henry  Middleton  never  assumed  the  trust.  This  appears  to  me 
a  plain  disavowal  .of  the  defence  ;  notwithstanding  the  ultimate  adhesion 
to  the  defence.  I  cannot,  upon  the  fullest  consideration,  see  any  reason 
to  doubt  the  equity  and  the  legality  of  decreeing  for  the  plaintiffs. 

Defendants  appeal,  and  hope  the  decree  may  be  reversed,  for  the  fol- 
lowing, among  other  reasons  : — 

1.  That  plaintiffs  seek  payment  of  a  voluntary  bond,  never  delivered 
to  them,  but  signed  and  sealed,  and  macie  payable  to  Henry  Middleton, 
■who  refuses  the  trust ;  so  that  plaintiS's  cannot  sue  at  law.  But  if  they 
cannot  sue  at  law,  they  cannot  be  relieved  in  equity,  for  equity  never 
interferes  in  favor  of  a  volunteer. 

2.  That  the  bond  being  voluntary,  and  the  plaintiffs  not  parties  to  it, 
J.  I.  Middleton  had  a  right,  if  he  saw  fit,  to  recall  the  money.  That  he 
has  exercised  this  right,  and  Equity  will  not  control  the  legal  right  of  the 
obligor,  or  obligee,  or  give  the  plaintiffs  a  better  security. 

3.  That,  in  point  of  fact,  there  was  no  delivery  of  the  bond  :  and  no 
acceptance  of  the  trust  by  the  supposed  trustee. 

4.  That  in  favor  of  a  volunteer,  relief  cannot  be  extended,  in  equity, 
beyond  the  letter  of  the  deed.  Whereas,  the  decree  not  only  carries  the 
relief  beyond  the  letter  of  the  deed,  but,  in  opposition  to  equity,  makes 
the  defendant  liable  to  the  plaintiffs  for  the  default  of  a  third  person,  and 
decrees  interest  from  the  time  when  the  debts  and  legacies  might  have 
*Rqe-|  "^sen  paid,  if  moneys  lost  ^without  the  wilful  default  of  the  defend- 

-■  ants,  had  been  duly  applied. 

Petigru,  for  appellants. 
Grimke,  contra. 

Chancellor  Johnston  delivered  the  opinion  of  the  Court. 

Under  the  decided  cases,  the  delivery  of  the  bond  would  have  been 
established  upon  even  less  evidence  than  was  furnished  on  the  trial.  As 
it  is,  the  proof  fully  sustains  the  Chancellor's  conclusion  on  the  fact. 

The  law  of  the  case  seems  to  admit  of  little  doubt. 

Cases  have  been  quoted  to  show  that  equity  will  not  aid  a  mere  volun- 
teer, where  no  legal  right  has  passed,  or  where  the  action  of  this  Court 
is  necessary  to  constitute  the  relation  of  trustee'  and  cestui  que  tt^ust. 

But  the  delivery  and  acceptance  of  the  bond,  ijyso  facto,  constituted 
Mr.  Henry  Middleton  trustee.  The  bond  contained  his  commission,  and 
set  forth  his  duties. 

It  also  vested  in  him  the  debt  of  which  it  was  the  evidence  ;  and  if 
that  debt  should  be  detained,  he  had  a  legal  remedy  to  recover  it. 

Wherever  a  trustee  has  accepted  a  trust,  he  is  bound  to  a  diligent  dis- 


^598] 


CHARLESTON,    FEBRUARY,    1837.  457 


charge  of  his  duties.  If  he  holds  choses  in  action,  with  a  clear  remedy 
on  them,  it  is  unfaitiiful  in  him  not  to  endeavor  to  enforce  them.  If  he 
holds  a  bond,  even  although  that  bond  is  a  free  gift,  he  has  no  right  to 
remit  it. 

It  never  was  the  law  that  a  trustee  was  not  as  amenable  to  a  volunteer 
cestui  que  trust,  as  to  one  who  is  not  a  volunteer.  If  that  were  the  law, 
no  executor  would  be  accountable  to  collateral  legatees. 

So  that  without  going  further  than  Mr.  H.  Middleton,  the  plaintiffs 
have  a  right  to  come  here  to  compel  him  to  perform  his  trusts. 

But  if  he  is  liable,  it  results  that  he  may  be  compelled,  also,  to  surren- 
der to  his  cestui  que  trusts  all  the  legal  remedies  he  possesses.  And  this 
puts  the  plaintiffs  in  possession  of  the  bond,  to  all  intents,  as  if  it  had 
been  drawn  to  them  as  obligee,  or  assigned  to  them. 

If  it  had  been  drawn  to  the  plaintiffs  by  Mr.  John  Izard  Middleton,  or 
assigned  to  them  by  Mr.  Henry  Middleton,  will  it  be  pretended  that  the 
plaintiffs  could  not  recover  from  the  obligor,  even  if  it  was  given  on  no 
consideration  ?  If  it  had  been  given  on  a  consideration,  which  failed, 
that  would  be  a  good  defence.  But  the  original  want  of  consideration 
would  be  none. 

*]}ut  if  a  consideration  were  necessary  to  support  the  transac-  r:):-nQ 
tion  and  enable  the  plaintiff  to  sue  here,  one  existed  in  this  case,  '- 
not  valuable,  indeed,  but  meritorious.    The  Chancellor  has  stated  it  truly 
and  forcibly. 

The  object  was  to  heal  family  discord,  by  curing  suspicions. 

In  Wiseman  t'.  Roper,  1  Ch.  Rep.  84,  articles  were  enforced  in  favor 
of  a  nephew  against  an  uncle,  whose  principal  object  in  entering  into 
them  was  to  reconcile  the  nephew's  father  to  him. 

In  Stapilton  v.  Stapilton,  1  Atk  1,  Lord  Hardwicke  held  a  volunteer 
entitled  to  the  execution  of  an  agreement  intended  to  establish  the  peace 
of  a  family. 

If  the  Court,  in  this  case,  travels  beyond  the  case  of  the  trustee  and 
cestui  que  trusts,  and  takes  cbgnizance  of  the  liabilities  of  the  obligor,  it 
is  at  the  instance  of  the  defendants,  who  insisted  on  his  being  made  a 
party.  Being  here,  at  his  own  instance,  the  Court  will,  to  prevent  cir- 
cuity of  action,  decree  against  him  what  he  would  have  been  liable  to 
pay  the  defaulting  trustee,  or  what  the  plaintitls  could  recover,  if  the  bond 
had  been  assigned  to  them. 

^The  payment  of  the  bond  is,  by  its  terras,  made  to  depend  upon  the 
extinguishment  of  the  debts  and  legacies  charged  on  Mrs.  Middleton's 
estate.  The  instrument  should  receive  a  reasonable  construction  ;  neither 
too  strict  nor  too  loose  on  either  side.  On  the  one  hand,  it  could  not  be 
the  intent  of  the  obligor,  when  he  gave  the  bond,  to  give  an  unavailable 
obligation,  which  this  would  be,  if  he  might  evade  payment,  by  capri- 
ciously delaying  to  dischgirge  the  precedent  obligations.  On  the  other 
hand,  he  should  not  be  bound  to  greater  diligence,  in  paying  the  prior 
obligations,  than  would  be  exacted  of  one  who  had  accepted  a.  trust  to 
pay  them  out  of  the  assets  of  the  estate;  and  if,  by  reasonable  diligence, 
they  could  not  be  paid  as  early  as  the  plaintiffs  could  have  wished  ;  or  if, 
without  fault  in  Mr.  Middleton,  the  assets  were  wasted  by  an  ageiit  (which 
would  excuse  a  trustee),  these  circumstances  should  be  taken  into  con- 
sideration in  fixing  the  time  when  the  debts  and  legacies  should  have  been 


458  SOUTH    CAROLINA    EQUITY    RErORTS.  [*599 

extinguished.     Of  course,  these  matters  will  be  attended  to  in  the  refer- 
ence which  the  Chancellor  has  ordered. 
The  motion  is  dismissed. 

Chancellors  Johnson  and  Harper  concurred. 

Chancellor  De  Saussure  absent,  from  indisposition.  •« 


*finoi  *J^coB  EsswETN  and  Nancy  Esswein  vs.  John  Seigling,  Exe- 
-^  cutor  of  Theodore  Euswein. 

A  gift  executed  liy  delivery  is  binding.  Actunl  manual  delivery  is  not  necessary  ; 
it  is  enough  tbat  tbe  donee  bave  possession  witb  the  assent  of  the  donor  ;  and 
therefore  where  the  defendant  was  an  executor  in  possession  of  an  estate,  the 
management  of  which  required  extraordinary  trouble,  and  the  legatees  wrote  to 
him  to  retain  one  thousand  dollars  of  the  fux  ds  in  hand  as  a  present,  which  he 
accepted,  and  afterwards  filed  a  bill  for  an  accourt:  Held,  tbat  tbe  plaintitfs  were 
bound  and  defendant  was  allowed  this  sum  in  making  up  the  accounts.  [*601] 

Heard  before  Chancellor  Johnson,  Charleston,  May  Term,  1836. 

Theodore  Esswein,  of  Charleston,  by  his  will  dated  Hth  March,  1830, 
gave  all  his  estate  to  his  parents,  Jacob  Esswein  and  Anna  Maria  Ess- 
wein, and  his  sister,  Nancy  Esswein,  of  Manheim,  Germany ;  and  named 
Dr.  Benjamin  Simons  and  John  Siegling,  of  Charleston,  executors.  Anna 
Maria  died  before  the  testator,  and  he  died  in  Cuba,  on  the  28th  June, 
1880. 

Seigling,  one  of  the  executors,  who  was  in  Cuba,  removed  the  pro- 
perty there  to  Charleston — which  was  not  effected  without  some  diffi- 
culty— and  proved  the  will  here. 

Jacob  and  Nancy  Esswein,  in  December,  1880,  wrote  to  Siegling, 
among  other  things,  as  follows  :  "  The  compensation  which  the  law  allows 
does  not  appear  to  us  an  adequate  indemnity  for  a  man  of  business,  nor 
will  we  limit  ourselves  to  it,  but  beg  you  to  make  use  of  our  gratitude  to 
any  extent  you  may  deem  proper."  And  again,  on  the  6th  March,  1882, 
"  In  acknowledgment  of  the  great  pains  you  took  in  these  affairs,  we, 
with  a  deep  sense  of  gratitude,  intreat  you  to  accept,  besides  the  legal 
commission  or  provision  as  executor,  $1,000,  both  as  a  present  from  our 
part,  and  a  token  of  memory  of  your  late  friend,  which  sum  you  will 
please  deduct  from  the  proceeds  in  hand."  And  on  the  13th  June,  188^, 
"  The  precaution  you  display  in  the  management  of  our  affairs,  leaves  us 
more  indebted  to  you,  but  we  hope  hereafter  to  find  occasion  to  return  to 
you,  or  some  member  of  your  respectable  family,  part  of  our  obligations. 
Let  us  entreat  you,  esteemed  friend,  not  to  judge  us  wrongfully  on  that 
account,  nor  suspect  us  of  a  desire  to  pay  off  a  friendship  which  has 
obliged  us  forever,  and  bids  us  to  avail  ourselves  of  every  opportunity  to 
prove  by  deed  the  sincerity  of  our  sentiments." 

They  afterwards  found  fault  with  the  administration,  and  filed  this  bill. 

The  Commissioner  made  his  report  of  the  balance  in  defendant's  hands. 
The  plaintiffs  excepted  to  the  allowance  of  the  $1000. 

Johnson,  Chancellor.     In  assuming  the  administration  of  the  estate. 


*dOO]         CHARLESTON,  FEBRUARY,  1837.  459 

the  defendant  incurred  the  obh"gation  imposed  by  hxw,  to  *pay  the  r:(</.Ai 
phiintill's  what  should  remain  of  the  estate  after  paying;  the  del)ts  ^ 
of  the  testator,  and  the  necessary  expenses  and  charges  of  administra- 
tion ;  and  as  a  compensation  for  his  services,  tlie  Act  of  the  Lcirir^hiture 
authorizes  liim  to  retain  a  commission  of  two  and  a-li;Uf  per  cent,  on  all 
moneys  received,  and  provides  the  like  commission  on  all  sums  paid  out; 
and  the  Act  of  1745  irnb.  Laws,  203,)  provides,  that  if  the  executor 
shall  have  extraordinary  trouble  in  the  management  of  an  estate,  he  may 
bring  an  action  in  tiie  Court  of  Common  Pleas,  in  which  a  jury  may  allow 
him  a  further  compensation,  not  exceeding  five  per  cent,  on  the  amount 
which  may  have  passed  through  his  hands.  In  stating  the  accounts,  the 
Commissioner  credited  the  defendant  with  two  and  a-half  per  cent,  for 
receiving,  and  the  same  for  ])aying  out  the  funds.  So  that  he  became 
indebted  to  the  plaintiffs  on  the  balance  of  the  estate  ;  and  the  question 
is,  whether  the  defendant  is  entitled  to  credit  for  the  additional  sum  of 
$1000,  which  the  plaintiffs  tendered  to  him,  and  authorized  him  to  deduct 
from  the  funds  in  hand,  and  which  he  agreed  to  accept  as  further  com- 
pensation. If  it  be  regarded  as  a  mere  voluntary  offer  to  give,  I  think 
very  clearly  that  he  is  not.  No  executory  contract  is  binding,  uidess  it 
is  founded  on  a  good  or  valuable  consideration,  and  the  discharge  or  dis- 
solution of  a  subsisting  debt  or  obligation  is  as  obviously  the  sul)jcct 
matter  of  a  contract,  as  an  undertaking  to  pay  money,  or  to  do  any  other 
act,  and  necessarily  requires  the  same  consideration  to  support  it.  Hooper 
V.  Goodwin,  1  Swan.  485  ;  Brysou  v.  Brownrig,  9  Ves,  1  ;  Byrn  v.  God- 
frey, 4  Ves.  6;  Reeves  v.  Brymer,  G  Yes.  516.  -No  declaration  of  any 
intention  to  give,  however  solemn  and  formal,  even  although  the  terras 
import  a  present  gift,  will  be  binding,  unless  it  be  accompanied  by  a 
delivery  or  transfer  of  the  thing  intended  to  be  given.  But  it  follows 
necessarily,  that  a  gift  executed  by  a  delivery  of  the  thing  intended  to  be 
given,  is  binding  on  the  donor,  however  improvident  it  may  have  been  on 
his  part,  or  however  unworthy  the  donee.  Cotteen  v.  Missing,  1  Mad. 
Rep.  103.  I  do  understand,  however,  that  an  actual  manual  delivery  is 
indispensible.  It  is  enough,  that  the  donee  obtained  the  possession  of 
the  thing  given,  under  the  authority  and  with  the  assent  of  the  donor. 
Thus,  if  the  gift  be  of  a  horse  in  a  stal)le,  and  the  donor  say  to  the  donee, 
"I  give  you  that  horse  and  authorize  you  to  take  him,"  and  he  take  him 
accordingly  ;  so  of  money  in  a  drawer,  or  goods  in  a  warehouse. 

*Here  the  defendant  was  in  possession  of  a  fund  which  belonged  r^icgQo 
to  the  plaintiffs,  and  in  their  letter  of  the  6th  March,  1832,  tliey_  ^ 
entreat  him,  "to  accept,  besides  the  legal  commission,  or  provisions  as 
executor,  $1000,  both  as  a  present  on  our  part,  and  a  token  of  memory  of 
your  late  friend,  which  sura  you  will  please  deduct  from  the  proceeds  on 
hand  ;"  a  most  clear  and  decided  declaration  of  an  intention  to  give.  The 
answer  of  the  defendant  to  this  letter,  is  not  before  the  Court;  but  iu 
their  letter  of  the  1st  September,  1832,  they  say,  they  rejoice  "  at  the 
acceptance  of  the  gratification  we  offered  to  you,  as  a  feeble  effort  of  our 
gratitude,"  &c.  ;  and  it  is  obvious  that  in  his  reply  to  the  first  letter, 
defendant  had  consented  to  accept  the  tendered  gratuity,  and  in  conformity 
with  their  request,  had  deducted  it  from  the  fund  in  hand,  and  ai)i>ro- 
priated  it  to  his  own  use.  So  that  the  gift  was  perfected  to  the  whole 
extent  of  which,  from  its  nature  it  was  capable ;  and  the  question  is  whether 


460  SOUTH    CAROLINA    EQUITY    REPORTS.  ["^602 

the  plaintiffs  are  bound  ?  I  think  tliey  are.  The  circumstances  well 
warranted  the  defendant  in  treatinjj:  tliis  sum  as  his  own,  and  the  necessary- 
inference  is,  that  he  did  so.  He  may  have  adventured  it  in  hazardous 
and  losinjr  s])eculations,  or  dissijiated  it  in  folly.  If  he  has  made  a  jirofit 
in  it,  and  is  bound  to  account  for  the  principal,  he  must  also  account  for 
the  profits  ;  and  it  would  be  unreasonable  to  call  him  to  such  an  account 
at  this  day.  If  it  had  been  lost,  or  dissipated  in  folly,  the  plaintiffs  are 
chargeable  with  throwing  this  temptation  in  the  way  of  the  defendant. 

There  is  another  view  of  this  matter.  The  Act  of  1745,  before  referred 
to,  allows  an  executor  additional  compensation,  not  exceeding  five  per 
cent.,  when  he  shall  have  had  extraordinary  trouble  in  the  management 
of  the  estate.  The  defendant  had  extraordinary  trouble  with  this  estate. 
A  part  of  it  was  in  Cuba,  and  a  part  here,  and  necessarily  involved  the 
trouble  and  expense  of  travelling  to  and  fro  ;  he  was  under  the  necessity 
of  remitting  the  funds  to  Germany,  by  means  of  bills  of  exchange  ;  his  dili- 
gence and  prudence  in  the  managment  of  it  is  again  and  again  admitted,  and 
commended  in  the  plaintiffs'  letters  ;  and  alihough  the  tender  of  the  $1000, 
is  put  on  a  footing  of  a  voluntary  donation,  yet  it  is  obvious  that  this 
extraordinary  trouble,  is  the  basis  of  the  gift,  and  entered  largely  into  the 
considerations  ;  so  that,  in  truth,  the  donation  was  not  merely  gratuitous  : 
aud  I  apprehend,  that  the  Court  would  not  enter  very  minutely  into  the 
*fi0^1  ^"*^1"''T'  \vhether  the  compensation  *fell  short,  or  exceeded,  the  com- 
-'  pensation  allowed  by  law.  As  in  Trimmier  v.  Trail,  2  Bailey,  4S0, 
where  a  legatee  agreed  not  to  charge  the  executor  interest  on  her  legacy, 
because  he  had  not  charged  her  commissions  on  her  legacy,  and  had 
boarded  her  gratuitously  for  a  short  time  ;  and  it  was  held  that  the  con- 
sideration was  good,  and  the  promise  binding,  without  an  inquiry  into 
the  exact  state  of  the  accounts.     The  exceptions  is  therefore  overruled. 

From  this  decree  the  plaintiffs  appealed. 

Petigru,  for  plaintiffs.  Delivery  is  essential  to  a  gift,  and  a  consider- 
ation to  a  promise.  Neither  delivery  or  consideration  is  made  out.  But 
even  if  the  gift  had  been  executed,  the  defendant  could  not  insist  on  it. 
The  rule  is  against  allowing  a  person  standing  in  a  fiduciary  relation,  to 
practice  upon  the  confidence  of  his  constituent,  so  as  to  make  an  advan- 
tage of  his  bount}',  till  the  relation  is  at  an  end.  Thus  a  gratuity  from 
a  client  to  his  attorney,  may  be  recalled.  Walmslv  v.  Booth,  2  Atk.  25 ; 
Newman  t'.  Payne,  2"  Ves' jr.  199;  Welles  v.  Middleton,  1  Cox,  112. 
So  the  principal  has  been  enforced  against  a  guardian,  Hylton  v.  Hylton, 
2  Ves.  547  ;  Pierse  u.  Waring,  1  P.  Wms.  121,  n.  Asrainst  an  agent, 
Cray  v.  Mansfield,  1  Yes.  379;  Fox  v.  Macreth,  2  Cox,"l58  ;  Gibson  v. 
Jeyes,  6  Yes.  266.  Against  trustees,  Campbell  v.  Walker,  5  Yes.  678  ; 
Ex  parte  Hughes,  6  Yes.  617. 

All  these  were  cases  perfectly  free  from  fraud.  The  gifts  or  contracts 
had  been  executed  ;  but  on  the  principle  of  protecting  against  an  abuse 
of  confidence,  the  transactions  were  not  allowed  to  stand.  This  case  is 
fully  within  tlie  principle,  and  is  a  very  weak  one  for  the  claim,  which  is 
certainly  not  stronger  than  a  receipt  without  satisfaction.  A  receipt  in 
full  would  not  have  bouud  the  plaintifl's.  Corbett  v.  Lucas,  4  M'Cord,  323. 
The  claim  of  the  $1000,  is,  therefore,  certainly  bad  at  law.     A  forliori 


*603]  CHARLESTON,    FEBRUARY,    1837.  4()1 

it  is  bad  in  equity,  whicli  never  assists  a  volunteer,  hut  sets  aside  aetual 
gifts  from  a  cestui  que  trust  to  liis  trustee,  as  against  policy  and  justice. 

Eckhard,  for  defendant.  In  all  cases  of  a  gift  the  real  question  is, 
whether  the  donor  has  ])arto(l  with  his  dominion  over  it.  M'Dowall  ads. 
Murdoch,  1  Nott  &  M'Cord,  237.  Where  the  subject  will  not  admit  of 
a  corjioreal  delivery,  if  the  party  goes  as  *far  as  he  can  towards  ^*/./^, 
transferring  the  possession,  his  bounty  will  prevail.  Toller,  234.  ^ 
A  gift  may  be  by  deed,  in  word,  or  in  law.  All  goods  and  cliattcls  ]ier- 
sonal,  may  be  given  without  deed.  A  free  gift  is  good  without  consider- 
ation, and  it  is  not  in  the  donor's  power  to  retract  it,  though  he  made  it 
without  any  consideration.  2  Toralin's  Law  Dictionary,  Title  Gift. 
Though  a  Court  of  Equity  will  not  assist  a  volunteer,  yet  if  the  act  be 
completed,  though  voluntary,  the  Court  will  act  upon  it.  18  Vesey,  150. 
To  complete  a  gift,  there  must  be  an  actual  or  constructive  delivery  of 
possession.  Pitts  v.  Mangum,  2  Bailey,  588.  There  may  be  cases 
where  the  Court  will  establish  an  agreement  made  with  a  trustee  for 
extraordinay  allowance.  AyliCTe  v.  Murray,  2  Atkins,  59;  Brocksopp 
V.  Barnes,  3  Maddock,  61.  The  appointment  of  an  executor  in 
India,  constitutes  him  agent  for  the  management  of  the  estate.  Poole 
V.  Larkins,  4  Vesey,  72;  Cockerell  v.  Barber,  2  Ilussel,  585.  The 
Act  of  1745,  recognizes  the  principal  of  additional  compensation  to 
executors,  beyond  commissions.  Logan  v.  Logan,  1  M'Cord's  Chancery, 
5.  As  to  the  rule  of  guardian  and  ward,  that  applies  Avhere  a  gift  is 
required  as  a  condition  of  accounting.  1  Maddock's  Chancery,  123. 
The  parties  being  of  full  age,  are  lirima  facie  bound  by  their  contracts. 
The  inquiry  is,  has  any  supposed  influence  which  an  attorney  has  over  a 
client,  been  used  to  his  prejudice.  Ervin  v.  Miles,  1  M'Cord's  Chancery, 
547. 

Per-  Curiam.  The  case  depends  on  testimony,  and  we  are  satisfied 
with  the  conclusion  of  the  Chancellor.  The  decree  is  affirmed.  Parties 
to  pay  their  own  costs. 

Chancellor  Johnston,  dubitante. 


CASES    IN   CHANCERY 

ARGUED     AND     DETERMINED     IN     THE 

COUET  OF  APPEALS  OP   SOUTH  CAEOLIM. 

Columbia— Ban,  1837. 


CHANCELLORS   PRESENT. 

Hon.  henry  W.  DE  SAUSSURE,  President. 
Hon.  DAVID  JOHNSON, 
Hon.  WM.  HARPER, 
Hon.  J.  JOHNSTON. 


Caroline  Seibels  v.  Abner  Whatley,  Barnet  Statham  and  Wife, 

and  Others. 

Testator  by  his  will,  after  a  specific  bequest  gives  the  residue  to  his  wife  for  life 
and  at  her  death  "  to  the  nieces  of  my  wife,  in  such  manner  and  at  such  time  as 
my  said  wife  shall  think  proper." — Held,  that  the  power  of  disposing  was  not 
given  to  the  wife  ;  that  she  had  no  right  to  divest  the  legacies  so  given,  nor  to 
disturb  the  equality  of  the  portions  which  the  will  vested  in  the  nieces,  but 
merely  to  fix  on  the  time  and  mariner  of  enjoyment ;  and  that  a  niece  of  the  hus- 
band not  being  within  the  description  of  those  named  in  the  will,  could  not  take 
by  the  appointment  of  the  wife.  [*6U8] 

Where  the  term  "  increase  of  slaves,"  is  used,  it  means  increase  thereafter  to  be  pro- 
duced. Under  a  bequest  of  a  female  slave  and  her  increase,  children  of  the  slave 
born  before  the  execution  of  the  will,  do  not  pass    [*G09] 

Edgefield,  June  Term,  1836. 

Peter  Lamkin,  late  of  Edgefield  district,  having  a  wife  but  no  children, 
made  his  last  will  and  testament,  dated  10th  of  June,  1826,  of  which  the 
following  is  a  copy  : 

"  I,  Peter  Lamldn  of  the  State  and  District  aforesaid,  being  of  sound 
mind  and  memory,  but  mindful  of  the  uncertainty  of  life,  do  make  and 
ordain  this  my  last  will. and  testament,  revoking  all  others. 

"  1st,  I  lend  unto  my  wife,  Helen  Lamkin,  all  my  estate,  real  and  per- 
sonal, (after  paying  all  just  demands  that  I  may  owe,)  to  be  by  her 
enjoyed  during  her  life,  and  at  her  decease,  I  do  hereby  give,  devise,  and 
*6061  ^^^"^^^^^  ^^iito  Edmund  Lamkin  Whatley,  my  nephew,  *the  tract 
of  land  I  Tiow  live  on,  containing  eight  hundred  acres,  together 
with  all  the  crop,  horses,  cattle,  hogs,  farming  utensils,  &c.,  that  may  be 
on  the  plantation  at  the  decease  of  my  said  wife ;  also  the  following  ne- 
groes :  Ned,  Sam,  Pompey,  Pollidore,  George,  Nance  and  her  increase, 
Mary  and  her  increase,  Betty  the  wife  of  Ned. 


*606]  COLUMBIA,   MAT,    1837.  463 

"  The  balance  of  my  nej^roes  and  other  property  not  herein  specified, 
as  willed  to  Edmund  L.  Whatley,  at  the  death  of  my  wife  Helen,  it  is 
my  wish  shall  be  given  to  the  nieces  of  myicife,  in  mich  manner  and  at 
siu'h  time  a.s  mi/  said  ^oife,  Helen,  shall  lliink  proper.  In  testimony 
whereof,  I,  the  said  Peter  Lamkin,  liave  hereunto  set  my  hand  and  seal 
this  tenth  day  of  June,  182G.     Peter  Lamkin,  [l.  s.J  Witnessed,  &c. 

It  is  my  wish  that  Col.  Abner  Whatley,  and  my  wife,  have  the  sole 
management  of  my  affairs." 

Shortly  after  the  date  of  the  will,  Peter  Lamkin  died — Col.  Whatley 
qualified  alone,  as  executor  on  the  will,  and  Helen  Lamkin,  tiic  widow, 
continued  in  the  possession  of  the  property  until  her  death,  in  April, 
183L 

Helen  Lamkin,  the  widow,  left  a  will  in  which,  after  reciting  the  power 
given  to  her  by  her  husband's  will,  of  distributing  the  residue  of  his  estate 
after  death,  &c.,  she  gives  of  that  estate,  to  Elizabeth  Helen  Lamkin, 
(her  husband's  niece,  not  hers,)  a  negro  child  named  Emma  :  to  all  the 
rest  of  her  neices  not  otherwise  therein  provided  for,  five  dollars  each  ; 
and  the  residue  of  the  estate  to  her  nieces,  Helen  Anne  Whatley  and 
Caroline  Lamkin  Statham,  to  be  equally  divided  between  them  ;  and 
appointed  Abner  Whatley  her  executor.  By  a  codicil,  she  altered  the 
distribution  between  Helen  Anne  Whatley  and  Caroline  L.  Statham,  and 
gave  to  Helen  Anne,  a  negro  girl,  Harriet,  and  a  tract  of  land  called 
the  Pickle  Place,  and  the  residue  to  Caroline  L.  Statham. 

After  the  death  of  Helen  Lamkin,  in  April,  1831,  Abner  WHiatley 
qualified  on  her  will,  and  in  conformity  with  its  provisions,  delivered  over 
the  legacies  as  therein  directed,  except  the  negro  girl,  Emma,  (a  child  of 
Nance,  born  before  the  execution  of  Peter  Lamkin's  will,  and  bequeathed 
by  Helen  Lamkin  to  Elizabeth,)  which  he  still  holds  as  guardian  of  his 
son  Edmund  L.  Whatley. 

The  negro  woman  2^ance,  bequeathed  by  Peter  Lamkin  to  E.  L. 
Whatley,  had  at  the  execution  of  his  will  two  children,  Tom  and  the  said  girl 


Emma,  which  Abner  Whatley,  the  executor,  regarded*  as  passing 


[*607 


by  the  terms  of  the  will,    "  Nance  and  her  increase,''''  to  his  son 
Edmund,  and  therefore  as  his  guardian  has  them  now  in  his  possession. 

The  plaintiff,  Cornelia  Seibels,  a  neice  of  Helen  Lamkin,  has  filed  this 
bill  against  Abner  Whatley,  as  executor  of  the  two  wills,  and  as  guardian 
of  his  son,  Edmund  L.  Whatley,  and  against  Barnet  Statham,  and  Caro- 
line (formerly  Seibels)  his  wife,  Dr.  Thomas  Batty  and  Helen  Anne  (for- 
merly Whatley)  his  wife,  and  Eliza  Seibels,  as  defendants,  claiming  an 
equal  share  with  the  other  neices  of  Helen  Lamkin,  to  that  portion  of 
Peter  Lamkin's  estate,  which  he  by  his  will  directs  to  be  given  to  the 
nieces  of  his  wife,  in  such  manner  and  at  such  time  as  she  shall  think 
proper  ;  and  that  Tom  and  Emma  form  a  part  of  this  estate,  thus  subject 
to  an  equal  division  among  the  nieces  of  Helen  Lamkin,  and  do  not  pass 
and  vest  in  Edmund  L.  Whatley  by  the  terms  and  description  "  increase" 
of  Nance,  although  they  were  born  before  the  execution  of  the  will  of 
Peter  Lamkin.  All  the  defendants,  except  Eliza  Seibels,  answered,  and 
insisted  that  the  will  of  Peter  Lamkin  conferred  the  power  upon  his  wife 
to  dispose  of  this  property  among  her  nieces  in  such  portions  as  she  might 
think  proper  ;  and  Abner  Whatley  suggests  in  his  answer,  that  if  such  was 
not  his  intention,  and  the  property  be  now  subject  to  equal  division 


464  SOUTH    CAROLINA   EQUITY   REPORTS.  [*607 

anionfj;  all  the  neices  of  Helen  Lamkin,  then,  other  nieces  who  are  not 
parties  to  this  suit  are  entitled  to  eonie  in  and  take  shares. 

Johnson",  Chancellor.  The  first  point  made  by  counsel,  is  whether 
Tom  and  Emma,  children  of  Nance,  born  before  Mr.  Lamkin's  will,  pass 
to  E.  L.  Whatley  under  the  bequest  to  him  of  "  Kance  and  her  increase." 

The  words  used  do  not  limit  the  increase  given  with  Xance  to  future 
increase.  Increase,  as  a  general  term,  will,  I  suppose,  include  past  in- 
crease as  well  as  future  ;  and  extend  to  all  the  children  of  the  stock  slave. 

The  next  point  relates  to  the  extent  of  the  power  conferred  on  Mrs. 
Lamkin  by  her  husband's  will. 

The  words  used  by  the  testator  do  not  give  the  wife  the  power  of  giv- 
ing or  bequeathing  to  her  nieces,  but  amount  to  a  bequest  to  them  by  the 
testator  himself.  If  the  power  of  disposing  had  been  given  to  the  wife, 
and  not  exercised  by  the  husband,  then  it  might  have  been  a  debatable 
*ro«?1  question,  whether  she  had  not  such  control  *over  the  corpus  as 
-I  to  apportion  it  according  to  her  sound  discretion.  In  such  case, 
I  think  her  distribution,  however  unequal,  would  stand,  unless  it  frus- 
trated some  expressed  object  of  her  testator,  and  thus  evinced  fraud  or 
an  evasive  motive.  (1  Con.  Eng.  Ch.  Rep.  242;  2  lb.  303;  5  lb.  464; 
6  lb.  405;  Y  lb.  562;  Sug.  Pow.  440,  Ul,  481,  488;  7  East.  521; 
1  Yin.  66;  Harp.  Eq.  Rep.  117.) 

The  first  words  used  by  the  testator  are  these:  "The  balance,  &c.,  at 
the  death  of  my  wife,  it  is  my  wish  shall  be  given  to  the  nieces  of  my  wife." 
If  he  had  stopped  here,  I  think  no  lawyer  would  doubt  that  this  would 
have  amounted  to  a  direction  to  his  executors  to  deliver  "the  balance"  to 
his  wife's  nieces,  and  so  would  have  constituted  a  valid  bequest  to  the 
nieces  themselves.     The  executors  would  have  taken  upon  that  trust. 

The  words  superadded  ( "  m  such  manner  and  at  such  time  as  the  said 
Helen  shall  think  proper")  have  no  other  effect  than  to  require  the  ex- 
ecutors to  deliver  the  property  at  such  times  and  in  such  manner,  as  the 
wife  may  think  most  advantageous  to  the  legatees.  This  gave  the  wife 
no  right  to  divest  the  legacies  given  by  the  husband  to  the  nieces,  nor  to 
disturb  that  equality  of  portions  in  the  corpus  of  the  legacies  which  the 
will  of  the  husband  vested  in  them,  but  merely  to  fix  upon  a  time  and 
manner  for  their  enjoying  their  shares.  As  to  time,  for  instance,  she 
might  order  the  legacies  to  go  over,  either  in  her  lifetime  or  at  her  death, 
and  either  before  or  at  the  neices  marrying  or  coming  of  age,  «fec.  As  to 
manner,  she  might  by  deed  or  will  have  ordered  the  property  to  be 
delivered  either  free  from  or  subject  to,  trust  or  settlements,  &c.  (4  Con. 
Eng.  Ch.  Rep.  97;   13  Yes.  114.) 

Mrs.  Lamkin  transcended  her  power,  not  only  in  attempting  to  take 
from  some  of  her  nieces  their  right  to  equal  portions,  but  in  endeavoring 
to  give  part  away  from  her  own  nieces  to  Elizabeth  Helen  Lamkin,  a 
niece  of  her  husl)and.  The  husband  gave  exclusively  to  the  former  ;  his 
own  nieces  do  not  fall  within  the  legatees  described  by  him,  and  cannot 
take  without  violating  the  words  of  his  will. 

It  is  decreed  that  so  much  of  the  bill  as  relates  to  Tom  and  Emma 
ante  nati  "  increase  of  Nance  be  dismissed." 

That  the  appointment  made  by  Mrs.  Lamkin  among  her  own  nieces, 
be  set  aside  for  inequality  ;  and  that  in  favor  of  Elizabeth  Helen  Lamkin 


( 


*b08] 


COLUMBIA,    MAY,    1837.  465 


be  set  aside,  because  made  to  a  person  not  described  in  tlie  power  con- 
ferred on  her. 

That  the  Commissioner  do  make  up  the  accounts,  and  ascertain  and 
report  the  names  and  ages  (i.  e.  whetlier  infants  or  not)  of  the  per- 
*sons  entitled  to  take  as  nieces  of  Mrs.  Lauikin.  Also,  what  ri^(.n.c\ 
would  be  the  most  proper  time  for  delivering  their  portions,  and  L 
subject  to  what  trust  and  conditions.  The  costs  to  come  out  of  Mrs.  Lam- 
kin's  estate  so  far  as  it  may  extend.  The  balance,  if  any,  to  go  accord- 
ing to  the  effect  of  the  decree,  under  the  rule  of  Court. 

The  defendants,  except  Eliza  Seibels,  appealed,  and  will  move  the 
Court  of  Appeals  to  reverse  so  much  of  the  decree  as  sustains  the  bill, 
and  decides  that  Helen  Lamkin  had  not  power  to  dispose  of  the  prop- 
erty in  such  proportions  as  she  might  think  proper,  among  her  neices ; 
and  to  dismiss  the  bill  on  the  ground,  that  Peter  Lamkin  by  his  will  con- 
ferred upon  his  wife  the  power  of  disposing  of  the  property  as  she  should 
think  proper,  with  no  other  restriction  than  that  the  objects  of  her  bounty 
should  be  her  nieces. 

The  plaintiff  appeals,  and  contends  that  Tom  and  Emma  did  not  pass 
to  E.  L.  Whatley. 

Wardlaw,  for  the  plaintiff. 

Bauskett,  for  defendants. 

Harper,  Chancellor.  We  differ  from  the  Chancellor  who  pronounced 
the  decree,  in  relation  to  the  subject  of  the  plaintiff's  ground  of  appeal. 
When  the  term  "  increase  of  slaves "  is  used,  I  think  it  is  the  common 
understanding  of  men,  that  it  refers  to  increase  thereafter  to  be  produced. 
If  a  female  slave  were  bequeathed  who  had  children  grown  up,  and  them- 
selves having  children,  would  it  be  thought  that  all  these  were  to  pass 
under  a  bequest  of  the  first  parent  and  her  increase  ?  So  of  a  domestic 
female  animal.  When  the  right  of  a  tenant  for  life  to  the  increase  of  a 
flock  or  herd  is  spoken  of,  the  increase  to  be  produced  after  his  title  ac- 
crues, is  of  course  meant.  It  has  been  decided  by  this  Court,  overruling 
the  case  of  Gayle  v.  Cunningham,  (St.  Rep.  Eq.  124,)  that  the  children 
of  female  slaves  born  after  the  making  of  the  will  and  before  the  death 
of  the  testator,  do  not  pass  under  a  bequest  of  the  mother.  The  express 
bequest  of  the  slave  and  her  increase,  might  perhaps  be  construed  to  have 
the  effect  of  indicating  the  testator's  intention  that  these  should  pass. — 
But  I  cannot  in  any  way  constx'ue  them  to  relate  to  children  born  before 
the  making  of  the  will. 

With  respect  to  the  defendants'  ground  of  appeal,  we  agree  with  the 
Chancellor,  and  little  needs  to  be  added  to  his  reasoning.  *There  r*(.i  a 
can  be  no  doubt  of  the  correctness  of  the  remark,  that  if  the  will  •- 
had  stopped  at  the  words — "  The  balance,  &c.,  at  the  death  of  my  wife,  it 
is  my  wish  shall  be  given  to  the  nieces  of  my  wife  " — that  though  ex- 
pressed as  words  of  wishing  or  recommendation,  they  would  have  been 
imperative  and  made  an  effectual  bequest  to  all  the  nieces  of  the  wife, 
who  would  have  taken  equally ;  and  that  the  wife  could  have  had  no  control 
in  the  matter.  What  effect  can  be  given  to  the  superadded  words  "in 
such  manner  and  at  such  time  as  my  said  wife,  Helen,  sliall  think  proper  ?" 
It  is  not  said  in  such  proportions;  and  can  such   coustrucliou  be  given 


466  SOUTH    CAROLINA   EQUITY   REPORTS.  [*610 

to  the  words  ?  It  is  plain  that  the  words  "  at  such  time  "  can  have  no 
effect  in  this  respect.  Can  the  words  "in  such  manner  ?"  It  seems  ob- 
vious enough  that  manner  is  something  different  from  substance  or  quan- 
tity. In  the  King  v.  the  Marquis  of  Stafford,  7  East,  521,  referred  to 
by" the  Chancellor,  the  gift  was  to  the  wife  for  life,  and  then  to  the  use  of 
her  issue  "  in  such  parts,  shares  and  proportions,  manner  and  form,"  as 
she  should  direct.  There  was  no  doubt  about  her  power  of  apportion- 
ing; but  it  was  contended  that  under  the  devise  to  her  issue,  she  could 
only  appoint  an  estate  tail.  But  Lord  Ellenborough  determined  on  the 
words  "  manner  and  form" — that  they  import  the  power  of  determining 
the  nature  and  quantity  of  the  estate  the  issue  should  take,  and  therefore 
that  the  fee  was  well  appointed  by  the  wife.  In  Trollope  v.  Linton,  1 
Cond.  Eng.  Ch.  Rep.  242,  it  was  determined  by  the  Vice  Chancellor, 
Sir  John  Leach,  that  the  words  "manner  and  form"  have  the  effect  of 
authorizing  the  person  having  the  power  of  appointment  to  give  equitable 
estates  to  the  appointed  ;  and  that  the  grant  of  a  term  of  five  hundred 
years  to  trustees  for  their  use,  was  a  good  exercise  of  the  power.  The 
cases  on  the  subject  are  collected  by  Mr.  Sugden  in  his  treatise  on  Pow- 
ers, and  he  comes  to  the  conclusion  (p.  442)  that  "  in  all  these  cases,  it 
is  quite  clear  the  testator  means  the  fee  to  pass  :  and  the  word  manner, 
or  any  word  of  the  like  effect,  may  well  be  construed  in  favor  of  the  in- 
tention, to  mean,  in  such  mode  an  to  the  quantity  of  the  estate  to  he  given, 
as  the  donee  shall  think  fit. "  Here,  then,  full  effect  may  be  given  to  the 
words  used  in  the  will,  without  holding  them  to  relate  to  the  proportions 
of  the  property,  which  they  do  not  naturally  import.  Mrs.  Lamkin 
might  have  given  the  share  of  either  of  her  nieces  to  trustees  for  her  sep- 
arate use  during  life,  and  at  her  death  to  her  issue,  or  made  any  other 
^p,,-]  similar  arrangement  which  prudence^had  seemed  to  require.  *It 
-^  was  well  observed  in  argument,  that  if  a  similar  power  had  been 
given  as  to  property  bequeathed  to  a  single  individual,  it  would  have 
been  impossible  to  say  that  these  words  could  have  no  operation  or  effect. 
There  is  no  reason  for  giving  them  a  more  extensive  operation  when  the 
bequest  is  a  joint  one.  The  plaintiff's  motion  is  granted;  and  the  decree 
affirmed  with  respect  to  the  defendant's  ground  of  appeal. 
Chancellors  De  Saussure  and  Johnson,  concurred. 


John  P.  King  v.  Margaret  Clarke. 

An  administrator  cannot  set  aside  the  gifts  or  contracts  of  his  intestate,  on  the 
ground,  that  they  were  made  in  fraud  of  creditors.  He  has  no  other  rights  than 
his  intestate  had.  [*G13] 

A  judgment  against  an  administrator  in  Georgia,  is  not  such  evidence  of  indebted- 
ness as  will  enable  one  claiming  as  a  creditor,  to  sustain  a  bill  here  to  set  aside 
the  gifts  of  the  intestate  as  fraudulent.  [*()14] 

Administrators  of  the  same  intestate  in  different  States,  are  so  far  independent  of 
each  other,  that  a  judgment  against  one  furnishes  no  right  of  action  against  the 
other.     There  is  no  privity  between  them.  [*G14] 

A  creditor  seeking  to  set  aside  a  voluntary  conveyance  for  fraud,  must  show  that 
his  debt  existed  at  the  time  of  the  conveyance  by  such  evidence  as  would  establish 
it  in  an  action  at  law  ;  and  that  he  cannot  be  paid  unless  the  conveyance  is  set 
aside.  [*617] 

Before  Chancellor  Johnston,  Edgefield,  June  Term,  1836. 


*611]  COLUMBIA,   MAY,    1837.  467 

The  bill,  (filed  Sept.  1833)  states  that  S  and  M.  Allen  bronc:ht  their 
action  of  assumpsit  in  Richmond  county,  (Geo.)  against  Freeman  W. 
Lacey  and  David  Clarke  :  that  pending  the  suit  (on  7th  of  January, 
1830,)  Clarke  died  intestate.  Wm.  Magar  administered  on  his  estate  in 
Georgia,  and  was  made  defendant  to  the  suit ;  and  judgment  was  recov- 
ered (12tli  of  Jan.,  1832)  against  Lacey  in  his  own  right,  and  against 
Magar  as  administrator  of  Clarke,  for  ten  thousand  dollars,  and  execu- 
tion lodged  on  which  nothing  has  been  collected.  That  S.  and  M.  Allen 
assigned  the  judgment,  12th  of  April,  1832,  to  the  plaintiff.  That  La- 
cey resides  without  the  State,  and  at  the  rendition  of  the  judgment  and 
ever  since,  was  totally  insolvent.  That  the  judgment  against  Magar  was 
taken,  subject  to  the  plea  of  j^^fne  administravitjyrceter.  The  amount  of 
assets  in  the  administrator's  hands  undisputed,  does  not  exceed  $850,  for 
which  the  plaintiff  is  willing  to  give  credit  on  the  judgment ;  and  beyond 
this,  he  has,  in  money  and  property,  to  the  value  of  perhaps  eleven  hun- 
dred dollars,  claimed  by  defendant — the  whole  amount  disputed  and  un- 
disputed, not  exceeding  two  thousand  dollars.  That,  pending  the  said 
action  against  him,  and  in  anticipation  of  the  judgment,  and  to  defeat  it, 
David  Clarke,  on  4th  of  November,  1829,  executed  a  deed  of  gift  to  the 
defendant,  his  mother,  of  several  slaves  and  other  property,  but  retained 
possession  himself  until  shortly  before  his  death,  which  took  place  in 
Florida,  in  1830.  That,  when  about  to  go  there,  he  placed  a  large  sum 
of  money  in  defendant's  hands,  on  deposite,  or  as  a  gift.  That 
*shortly  after  his  death,  and  before  administration,  the  defendant  r^jj/^i^ 
took  into  her  possession  all  his  personal  chattels  which  she  could  L 
seize,  and  removed  to  this  State,  and  has  since,  with  the  funds  of  Clarke, 
as  is  alleged,  purchased  lands  and  negroes.  The  bill  charges  the  deed  of 
gift  to  be  fraudulent  and  void  as  to  creditor^  ;  and  prays  that  it  may  be 
set  aside — the  property  sold  and  applied  to  plaintiff's  judgment;  that 
defendant  account  for  the  money  and  effects  which  came  into  her  hands  ; 
and  for  the  property  purchased  with  Clarke's  funds,  and  for  the  hire  of 
the  negroes — and  for  general  relief. 

An  amendment  to  the  bill  (filed  18th  of  January,  1834,)  states  that  at 
the  filing  of  the  original  bill,  the  Ordinary's  office  for  Edgefield  was  va- 
cant ;  and  since  filled,  the  plaintiff  has,  in  that  district,  taken  out  letters 
of  administration  on  the  estate  of  David  Clarke  ;  and  prays  a  general 
account  from  defendant. 

Defendant,  in  her  answer,  denies  the  plaintiff's  right  to  sue  in  his  charac- 
ter of  creditor,  and  insists  that,  if  responsible,  she  is  oidy  so  to  an  ad- 
ministrator. Requires  proof  of  the  facts  to  establish  the  plaintiff's 
claim  ;  and  insists  that  the  Georgia  judgment,  being  only  evidence  of 
debt,  is  examinable ;  and  the  alleged  cause  of  action  being  for  money 
won  at  play  by  David  Clarke,  from  the  clerk  and  agent  of  the  Aliens,  it 
is  questionable  whether  by  the  laws  of  this  State,  such  action  could  have 
been  sustained  :  and  that  the  claim  now  made  is  by  one  who  has  pur- 
chased the  judgment  at  one-fifth  of  its  nominal  value.  She  denies  all 
fraud  in  the  bill  of  sale  :  two  of  the  negroes  mentioned  in  it  had  been  in 
her  possession  for  many  years  before,  when  she  advanced  money  to  her 
son  ;  one  is  not,  and  has  not  been  in  her  possession,  and  the  remaining 
negro  has  been  in  her  possession  since  the  execution  of  the  bill  of  sale. 
She  received  no  money  from  her  son  on  deposit.     Lacey  gave  her  $250 


468  SOUTH   CAROLINA   EQUITY   REPORTS.  [*612 

for  a  horse  given  her  by  her  son  ;  and  his  note  for  S2,000,  which  is  worth- 
less As  to  the  land  and  negroes  purchased  by  her,  they  were  bought 
from  her  own  earnings  hoarded  up  for  many  years,  aided  from  time  to 
time  with  small  sums  presented  to  her  by  her  son.  To  the  amended  bill 
she  answers  that  some  articles  of  furniture  were  left  with  her  by  her  son, 
which  are  not  accounted  for. 

On  the  trial,  the  plaintiff's  letters  of  administration,  and  an  exemplifi- 
cation of  the  Georgia  judgment  against  Lacey  and  David  Clarke's  ad- 
^p,„-|  ministrator,  was  given  in  evidence ;  but  no  witness  was  *called  to 
-<  prove  the  assignment.  Freeman  W.  Lacey  examined  by  defend- 
ant on  commission,  proved  that  the  Georgia  action  was  brought  to  re- 
cover money  won  by  David  Clarke  and  others  from  the  clerk  of  S.  and 
M.  Allen.  That  Clarke  and  his  partners  won  not  more  than  five  or  six 
thousand  dollars  from  the  clerk,  who,  to  the  witness'  own  knowledge,  lost 
other  large  suras  to  persons  not  connected  with  Clarke,  That,  in,  1831 
'or  '32,  he  paid  to  the  plaintiff  five  or  six  thousand  dollars,  in  notes  and 
bonds  of  the  deceased  Clarke,  some  of  which  have  been  since  collected  ; 
and  that  the  plaintiff  informed  him  he  had  purchased  the  judgment  for 
two  thousand  dollars. 

Other  evidence  was  given  which  is  not  stated  in  the  brief:  nor  is  it 
necessary  to  the  points  decided,  that  it  should  be  detailed.  The 
Chancellor  in  his  report,  states  that  he  thought  the  fraud  was  fully  made 
out,  and  regrets  that  the  plaintiff"  did  not  establish  the  indebtedues  to  the 
Aliens,  or  the  assignment  to  himself. 

The  Chancellor  pronounced  the  following  decree  : — 

Johnston,  Chancellor.  The  plaintiff  in  his  character  of  administrator 
of  David  Clark,  is  not  entitled  to  avoid  the  gifts  or  contracts  of  his  intes- 
tate, on  the  ground  that  they  were  made  in  fraud  of  creditors.  An 
administrator  is  the  mere  representative  of  his  intestate.  Wherever  the 
intestate  would  be  bound,  the  administrator  is  bound.  In  this  case, 
unless  David  Clarke  could  have  set  aside  the  gifts  or  contracts  com- 
plained of,  (which  it  will  not  be  contended  he  could  have  done,)  his 
administrator,  as  administrator,  cannot  do  so. 

The  argument  is  very  frequently  advanced,  that  an  administrator 
represents  the  creditors  of  the  intestate.  But  he  does  this  to  no  greater 
extent  than  the  intestate  did.  The  intestate  held  his  property  in  trust 
for  his  creditors.  If  he  made  a  disposition  of  it  in  fraud  of  their  rights, 
they  could  set  it  aside.     But  could  he  ? 

It  is  asked,  if  an  administrator  cannot  set  aside  the  fraudulent  gifts  of 
his  intestate,  for  what  reason  is  he  made  a  party  to  all  suits  brought  by 
the  creditors  against  the  fraudulent  donee  ?  For  the  very  same  reason 
that  the  donor,  if  he  were  alive,  would  be  made  a  party — in  order  that  it 
may  appear  that  there  is  an  insufficiency  of  property  to  answer  the 
creditors  without  resorting  to  that  included  in  the  gift;  and  that  a  judg- 
ment may  be  rendered  against  such  as  is  accessible,  in  exoneration  of  the 
*ri4l  '^^*^"^^'  whose  gift,  being  *good  as  between  himself  and  donor,  must 
-'  be  protected  as  far  as  can  be  done  without  injuring  the  creditors. 
Another  reason  is,  that  the  funds  be  restored  to  the  administrator  for 
due  administration. 


*614]  COLUMBIA,   MAY,    1837.  469 

It  is  necessary  then  for  tlie  plaintiff  to  show  himself  to  be  a  creditor, 
in  order  to  avoid  the  gifts  of  which  his  bill  coniphiins.     lias  he  done  this  ? 

If  the  judgment  rendered  in  Georgia  against  Magar,  the  Georgia 
administrator,  was  evidence  of  the  indebtedness  of  the  estate,  still  he  has 
not  proved  that  that  judgment  was  ever  assigned  to  him.  Tliis  would 
be  fatal  to  his  pretension  that  he  is  a  creditor. 

But  I  am  inclined  to  the  opinion,  that  the  judgment  is  not  evidence 
that  the  estate  is  indebted  to  the  Aliens.  I  mean,  that  if  the  Aliens  had 
brought  suit  against  the  South  Carolina  administrator,  they  could  not 
have  offered  this  judgment,  rendered  against  the  Georgia  administrator, 
as  evidence  of  their  debt,  but  would  have  been  obliged  to  substantiate 
their  debt  by  original  proof. 

Professor  Story,  in  his  commentary  on  the  Conflict  of  Laws,  Foreign 
and  Domestic,  chap.  13,  sec.  522,  says  on  the  authority  of  Lightfoot  v. 
Bickley,  2  Rawie,  431,  that  "where  administrations  are  granted  to 
different  persons  in  different  States,  they  are  so  far  deemed  independent 
of  each  other,  that  a  judgment  obtained  against  one  will  furnish  no  right 
of  action  against  the  other,  to  affect  assets  received  by  the  latter  in  virtue 
of  his  own  administration  :  for  in  contemplation  of  law  there  is  no  privity 
between  him  and  the  other  administrator." 

The  United  States'  Constitution,  in  declaring  that  full  faith  and  credit 
shall  be  given  in  each  State  to  the  judicial  proceedings  of  the  other 
States,  means  only,  I  apprehend,  that  credit  shall  be  given  to  them  as 
against  parties  bound  by  the  record,  or  their  privies,  not  as  against 
strangers.  I  take  the  South  Carolina  administrator  to  be  a  perfect 
stranger  to  the  Georgia  administrator.  He  is  not  even  his  successor,  as 
administrator  de  bonis  non. 

But  the  plaintiff,  as  administrator,  is  entitled  to  an  account  of  the 
property  of  his  intestate,  received  by  the  defendant  without  the  gift  of 
the  intestate.  Let  an  account  be  taken  for  so  much  of  that  kind  of 
property  as  the  plaintiff  can  prove  the  defendant  to  have  received,  and 
which  the  plaintiff  has  not  alleged  to  have  been  given. 

If  the  defendant  desires  to  set  up  her  counter-right  as  distril)utee,  to 
have  back  from  the  plaintiff  so  mnch  as  there  may  not  be  *del)ts  r-^f-^^b 
to  absorb,  she  must  file  a  cross-bill.     Let  the  defendant  pay  the  •- 
costs  of  this  suit. 

The  plaintiff  appealed  and  moves  the  Appeal  Court  to  reverse  so  much 
of  the  decree  of  the  Chancellor  as  disallows  plaintiff's  right  as  a  creditor 
of  his  intestate,  to  an  account  for  the  property  alleged  by  jdaintiff  to  have 
been  given  by  his  intestate  to  the  defendant,  on  the  following  grounds  :— 

1.  The  judgment  in  Georgia,  exemplified  and  exhibited  here,  is  evi- 
dence of  a  debt  due  by  the  estate  ;  and  is  no  further  questionable  here  in 
its  present  form  and  in  this  suit,  than  would  be  any  other  foreign 
judgment  between  the  original  parties  to  the  suit. 

2.  Because  it  was  sufficiently  admitted  and  proved  that  the  plaintiff 
was  the  owner  of  the  judgment. 

3.  Because,  admitting  the  judgment  not  to  be  conclusive  upon  the 
defendant,  and  the  assignment  to  the  plaintiff  not  to  have  been  regularly 
proved,  yet  the  judgment  is  pynma  facie  evidence  of  the  debt,  and  the 
onus  lay  with  the  defendant  to  impugn  it — and  that  the  plaintiff  had 

YoL.  L— 53 


470  SOUTH    CAROLINA    EQUITY   REPORTS.  [*615 

bought  and  paid  for  the  judgment  was  sufficiently  admitted  and  proved 
to  constitute  him  an  equitable  assignee, 

4.  Because,  in  ordering  an  account  to  be  taken  of  the  estate  of  David 
Clarke,  the  intestate,  the  order  should  have  been  extended  to  ascertaia 
the  extent  of  the  debts  and  to  whom  due. 

5.  Because  an  administrator  has  a  right  in  Equity  to  set  aside  the 
fraudulent  gifts  and  contracts  of  his  intestate,  upon  the  allegation  and 
proof  that  the  property  is  necessary  for  the  payment  of  debts  which  have 
a  lien  under  the  statute  against  fraudulent  conveyances  upon  such 
property. 

Bauskett,  for  appellant. 
Waddy  Thompson,  contra. 

Harper,  Chancellor.  We  concur  with  the  Chancellor,  that  the  tran- 
script of  the  judgment  recovered  in  Georgia  would  not  have  been  ad- 
missible in  evidence  in  an  action  against  the  administrator  here.  This  is 
very  fully  sustained  by  the  case  of  Lightfoot  t'.  Bickley,  referred  to — as 
well  as  by  expediency  and  analogy.  As  said  by  the  Chief  Justice  of 
Pennsylvania,  in  that  case,  "  Did  an  administrator  represent  the  person  of 
*fiiri  the  intestate  without  ^qualification  or  restriction,  the  plaintiff's 
-J  argument  would  be  incontrovertible  ;  but  it  is  clear  that  his  com- 
mission extends  only  to  assets  of  which  the  Ordinary  hud  jurisdiction. 

It  was  surmised  that  the  decision  may  have  turned  on  the  circumstance 
that  the  judgment  was  one  of  a  jurisdiction  altogether  foreign.  But  by 
common  law,  a  foreign  judgment  is  prima  facie  evidence,  though  its 
merits  may  be  inquired  into.  It  was  not  because  the  judgment  was  for- 
eign, but  because  it  was  against  a  person  with  whom  the  defendant  in 
Pennsylvania  had  no  privity.  The  Chief  Justice  speaks  of  an  unexam- 
pled spirit  of  comity  exercised  in  Pennsylvania,  by  which  the  administra- 
tor of  another  State  is  allowed  to  meddle  with  the  assets  there,  and  which 
he  supposes  likely  to  be  attended  with  much  perplexity  and  confusion. — 
But  no  such  comity  has  ever  obtained  in  this  State,  and  it  is  plain  that  it 
might  be  attended  with  very  mischievous  consequences.  A  person  hav- 
ing a  douijtful  claim,  even  a  citizen  of  this  State,  might  resort  to  another 
State  where  the  deceased  person  happened  to  have  left  goods,  and  pro- 
cure administration  to  be  granted  to  an  instrument  of  his  own  ;  and 
avoiding  appearances  which  would  show  and  detect  fraudulent  collusion, 
such  an  administrator  might  betray  the  defence,  so  as  to  enable  the  claim- 
ant to  recover.  Even  if  the  judgment  were  open  to  investigation,  the 
bona  fide  administrator  here,  might  find  the  greatest  difficulty  in  im- 
peaching it,  and  it  would  be  a  hardship  that  such  burden  should  be  im- 
posed on  him.  But  according  to  our  decisions,  under  the  Constitution  of 
the  United  States,  requiring  full  faith  and  credit  to  be  given  to  the  judi- 
cial proceedings  of  other  States,  the  judgment,  if  admitted  at  all,  must 
be  conclusive. 

Though  not  made  specifically  a  ground  of  appeal,  it  was  urged  in 
argument  that  the  debt  on  which  the  judgment  was  founded  was  suffi- 
ciently established  by  the  admission  of  the  answer  and  the  testimony  of  a 
witness,  and  that  the  assignment  of  the  judgment  must,  in  equity,  oper- 
ate an  assignment  of  the  debt.     But  to  this  there  are  various  objections. 


*616]  COLUMBIA,  MAY,  1837.  471 

That  case  was  not  made  by  tlie  bill ;  nothing;  was  charged  as  to  the  orig- 
inal indebtedness,  nor  was  the  plaintiff  called  upon  to  meet  that  case. 
The  part  of  the  answer  relied  upon,  was  plainly  intended  to  im])iign  the 
judgraeut,gind  not  to  admit  any  thing  resiiecting  the  original  indebt- 
edness. The  examination  of  the  witness  was  directed  to  the  same 
point — the  consideration  of  the  judgment.  Something  is  incidentally 
^brought  out,  which  might  seem  to  bear  on  the  origiual  indebted-  r:t:(-i.T 
ness;  but  plaintiff's  examination  was  not  directed  to  this:  and  L 
even  if  it  had  been,  the  witness  states  only  his  belief  without  the  grounds 
of  it,  and  plainly,  his  testimony  is  too  vague  to  authorize  any  conclusion. 

The  plaintiff  comes  to  set  aside  a  voluntary  conveyence  for  fraud.  To 
sustain  his  bill,  it  was  incumbent  on  him  to  show  at  the  hearing,  that  a 
debt  existed  at  the  time  of  the  conveyance,  and  that  the  creditor  will  be 
disappointed  unless  it  be  set  aside.  He  must,  coming  into  this  Court, 
establish  it  by  such  evidence  as  would  be  sufficient  to  establish  it  in  an 
action  against  an  administralor  here.  It  might  not  be  necessary  to  show 
the  entire  extent  of  the  indebtedness  ;  but  the  plaintiff  has  failed  to  show 
any  indebtedness  ;  though  he  states  himself,  to  have  received  about  $2000. 
Having  failed  to  make  out  his  case,  the  Court  cannot,  upon  an  hypothesis, 
or  surmise  that  perhaps  he  may  have  a  sufficient  case,  direct  a  further 
inquiry  on  reference.  The  defendant  has  a  right  to  require  the  dismissal 
of  his  bill,  so  far  as  respects  this  part  of  the  case. 

The  decree  is  affirmed. 

Chancellors  De  Saussure,  Johnson,  and  Johnston,  concurred. 


Wm.  Kinsler  and  Others  v.  Isom  Clarke. 

Injunction  granted  to  restrain  defendant,  ponding  an  action  to  try  title?,  from  com- 
mitting waste  by  cutting  and  carrying  off  the  timber,  where  the  chief  value  of  the 
land  consisted  in  the  timber,  and  it  appeared  more  than  probable  that  defendant 
would  not  be  able  to  pay  the  damages  which  might  be  recovered    [*618] 

On  an  npplication  for  an  inj  inction,  the  plaintiff  may  read  affidavits  tiled  before  the 
coming  of  the  answer  in  support  of  the  bill,  or  in  contradiction  to  the  answer  : 
but  no  affidavits  filed  subsequently  to  the  coming  in  of  the  answer  can  be  read. 
[*tJ20] 

Before  Chancellor  Johnson,  Lexington,  July,  1836. 

The  bill  in  this  case  was  filed  for  an  injunction  to  restrain  the  defend- 
ant from  committing  waste  in  cutting  down  and  carrying  off  the  timber 
from  the  land  in  question,  pending  an  action  of  trespass  to  buy  titles  at 
law,  by  the  plaintiffs  against  the  defendant — alleging  that  the  chief  value 
of  the  premises,  by  reason  of  its  vicinity  to  Columbia,  consisted  in  the 
timber ;  alnd  that  the  defendant  is  fast  dissipating  his  property,  and  will 
not  be  able  to  satisfy  the  damages  which  the  plaintiffs  may  recover. 

The  defendant,  in  his  answer,  admits  the  alleged  waste,  but  insists  that 
he  has  a  perfect,  legal  and  equitable  title  to  the  premises ;  and  sets  it  out. 

The  Chancellor,  in  his  decree,  discusses  the  question  of  right  to  r,):/.io 
*the  premises,  and  decides  it  in  favor  of  the  plaintiffs.     But  as  the  '- 
Court  of  Appeals  refused  to  express  any  opinion  on  that  question,  it  is 


472  SOUTH    CAROLINA    EQUITY    REPORTS.  [*618 

unnecessary  to  state  the  facts  connected  with  it,  and  the  Chancellor's 
reasoning  thereon.  In  relation  to  the  application  for  an  injunction,  the 
decree  proceeds  as  follows  : 

An  action  at  law  is  the  common  and  legitimate  remedy  for  •  trespass, 
wdien  the  party  injured  may  be  remunerated  in  damages  to  the  extent  of 
the  injury  sustained.  Retributive  justice  does  not,  however,  always  fur- 
nish an  adequate  remedy  :  the  trespass  may  be  of  such  a  nature,  that  the 
extent  of  the  injury  cannot  be  ascertained  by  any  rule  :  as  in  the  common 
case  of  working  a  mine.  And  the  Courts  of  Chancery  have  interposed  a 
preventive  justice  in  those  cases  in  which,  from  their  nature,  damages 
might  prove  an  uncertain  or  inadequate  remuneration,  by  restraining  the 
wrong  doer  from  a  continuation  of  the  trespass.  An  injunction  to  stay 
waste,  is  a  process  in  ordinary  use,  and  although  the  doctrine  was  origin- 
ally broached  with  great  caution,  and  proceeded  on  with  great  circum- 
spection, injunctions  to  restrain  trespass  when  irreparable  mischief  would 
be  effected  "before  atrial  at  law  could  be  had,  are  now  regarded  with  more 
favor.  Vide  Eden  on  Injunctions,  138,  et  seq.  iShubrick  i'.  Guerard,  2 
Eq.  Rep.  619,  note;  1  Fonb.  Eq.  32,  33,  notes.  And  in  reviewing  the 
cases  on  this  subject,  I  confess,  I  feel  some  surprise  that  they  have  ad- 
vanced in  favor  thus  far  at  so  tardy  a  pace.  It  is  true  that  the  title  to  a 
freehold,  is  a  subject  which  exclusively  belongs  to  the  jurisdiction  of  the 
law  Courts,  but  Chancery  utterly  disclaims  the  right  to  interfere  when 
the  title  is  in  dispute,  whether  it  refer  to  the  factum  of  the  muniments 
under  which  the  parties  claim,  or  the  boundaries.  Eden,  138.  And 
when  the  parties  come  before  the  Court,  the  plaintiff,  the  acknowledged 
owner  of  the  soil,  and  the  defendant,  a  naked  trespasser,  it  strikes  me 
as  comporting  more  with  substantial  justice  to  both  parties  to  restrain 
the  trespass,  than  to  leave  the  plaintitt'  to  pursue  his  remedy  at  law. 
In  most  trespasses,  particularly  those  committed  on  lands,  it  is  utterly 
impossible  to  fix  with  precision  the  quantum  of  injury,  and  we  know  from 
experience  that  the  verdicts  of  juries  in  such  cases  are  generally  the  re- 
sults of  compromise  between  the  extremes,  and  when  this  is  not  the  case, 
the  plaintiff  is  inadequately  rewarded,  or  the  defendant  punished  with 
great  severity.  It  would  therefore  be  for  the  interest  of  both  parties, 
that  the  trespass  should  be  prevented  :  every  one  has  the  right  to  enjoy 
*fii  qn  ^^^^  *vvhich  is  his  own ;  and  one  who  would  wilfully  disturb  him 
-'  in  it,  has  no  right  to  complain  if  he  is  restrained.  Injunctions  to 
restrain  trespasses,  have  been  confined  to  those  cases  only  where  the 
injury  was  supposed  to  be  irreparable,  and  whatever  may  be  my  own 
views  of  its  propriety,  I  am  not  disposed  to  part  from  the  old,  or  make  a 
new  precedent,  and  will  proceed  to  consider  whether  this  case  falls  within 
the  established  rule. 

The  bill  states,  and  the  answer  admits,  that  the  locus  in  quo  is  pine 
barren,  and  is  principally  valuable  on  account  of  the  fire-wood  and  timber 
growing  on  it,  and  its  contiguity  to  the  Columbia  market.  That  the 
defendant  has  been  for  some  time  past  cutting,  and  claims  the  right,  and 
proposes  to  continue  to  cut  the  wood  and  carry  it  to  market.  And  there 
is  no  question  that  by  the  employment  of  an  adequate  force  which  the 
sale  of  the  wood  itself  might  command,  the  defendant  might,  before  the 
action  at  law  could  be  tried,  strip  it  of  the  last  stick  of  wood  upon  it,  and 
leave  the  plaintiffs  a  barren  waste.     For  this  injury,  au  action  at  law 


[*620 


*619]  COLUMBIA,   MAY,    1837.  4  73 

certainly  lies,  and  the  plaintiffs  would  be  entitled  to  recover  the  value  of  tlic 
wood  cut  and  carried  off.  He  cannot,  in  a  Court  of  law,  purge  the  con- 
science of  the  defendant,  and  by  that  means  ascertain  the  extent  of  liis 
injury,  and  much  less  would  he  be  able  to  show  the  greater  benefit  that 
he  might  have  derived  by  a  better  husbandry,  and  waiting  for  better 
markets;  and  it  is  obvious  that  any  damages  which  a  jury  might  give, 
would  be  the  result  of  conjecture.  But  above  all,  the  trespass  tends  to 
the  destruction  of  the  wood  and  timber  which  gives  the  land  its  ]irincip:tl 
value,  and  brings  the  case  precisely  within  the  principal  of  the  rule.  A 
case  occurred  in  the  Court  of  Appeals  a  few  years  ago  which  is  not  re- 
ported, and  of  which  I  retain  a  very  imperfect  recollection,  which  strikes 
me  as  being  on  all  fours  with  this.  If  my  recollection  does  not  mistake 
me,  that  was  an  application  for  an  injunction  at  the  instance  of  the  owner 
of  a  saw  mill,  to  restrain  a  trespasser  from  cutting  timber  on  lands  con- 
tiguous to  it,  and  which  was  principally  valuable  on  account  ^f  the 
timber.  The  application  was  refused  by  the  Circuit  Court,  and  on  an 
appeal  an  injunction  was  ordered  to  issue.  The  plaintiffs,  in  support  of 
this  application,  rely  also  on  another  ground  which  I  am  disposed  to 
think  has  merits  :  the  insolvency  of  the  defendant,  and  the  probability 
that  he  will  be  unable  to  pay  the  damages  which  may  be  recovered  in  the 
action  at  law. 

The  ground  on  which  the  Court  proceeds  is,  it  will  be  recol- 
lected,* to  restrain  those  injuries  which  may  be  supposed  to  be 
irreparable  at  law — and  what  benefit,  I  would  ask,  would  a  plaintiff  de- 
rive from  a  judgment  at  law  against  a  notoriously  vagrant  pauper  ?  And 
how,  I  ask,  is  the  community  to  be  protected  against  the  wanton  injuries 
of  this  class  of  people  ?  Are  we  to  look  and  see  them  dispose  of  our 
property  in  mere  wantonness,  and  be  gravely  told  that  the  Court  of  law 
affords  relief  by  compelling  them  to  answer  in  damages  ?  I  think  not ; 
justice  is  not  so  blind,  nor  the  arm  of  the  law  so  feeble,  as  to  permit  such 
an  outrage  when  preventive  justice  can  be  interposed. 

The  fact  of  insolvency  is  denied  in  the  defendant's  answer,  and  he 
afSrms  his  ability  to  pay  any  damages  which  plaintiffs  may  recover  on 
account  of  the  supposed  trespass  :  but  from  the  affidavits  of  several  per- 
sons who  are  intimately  acquainted  with  his  circumstances,  I  am  led  to 
conclude  that  his  means  are  at  best  only  slender,  and  that  from  his  im- 
provident habits,  it  is  more  than  probable  they  will  rather  decline,  if  not 
go  to  ruin,  than  improve.  At  any  rate,  they  are,  in  my  estimation,  a  very 
inadequate  security  for  the  damages  which  the  plaintiffs  have  already 
sustained,  according  to  the  defendant's  own  account  of  their  extent,  and 
although  that  is  not  the  aliject  state  of  pauperism  supposed,  the  result 
would  be  the  same,  if  in  the  end  the  defendant  should  be  unable  to  pay 
the  damages.  The  right  of  the  plaintiff  to  read  affidavits  in  contradic- 
tion of  the  defendant's  answer  in  relation  to  the  allegation  of  his  insolvency 
is  denied.  The  rule  on  this  subject  appears  to  me  to  be  well  settled. 
The  plaintiff  is  unquestionably  at  liberty  to  file  and  read  affidavits  on  an 
appfication  for  an  injunction  in  support  of  the  allegations  in  this  bill 
before  the  coming  in  of  the  answer  ;  and  as  constituting  a  part  of  the 
case,  they  may  be  read  on  any  subsequent  motion  to  perpetuate  or  dis- 
solve the  injunction ;  but  it  is  an  inflexible  rule  that  no  affidavits  filed 
subsequently  to  the  cording  in  of  the  answer,  can  be  read  ;  and  the  reason 


474  SOUTH    CAROLINA    EQUITY    REPORTS.  [*620 

given  for  it  by  the  Lord  Chancellor,  in  Smythe  v.  Smythe,  1  Swanston, 
253,  is  that  it  is  calculated  to  surprise  the  defendant.  If,  he  observes,  the 
plaintiff  at  once  supports  the  alleg-ation  of  his  bill  by  the  statement  of 
particular  facts  or  affidavits,  the  defendant  has  an  opportunity  of  explain- 
ing or  denying  them  ;  but  if  they  are  kept  back  until  after  the  answer  is 
filed,  it  is  not  dealing  fairly  with  the  defendant.  The  only  exception 
allowed  to  the  rule,  is  in  cases  of  waste,  and  such  as  are  analogous,  for 
^p.^,  1  the  purpose  of  preventing  irreparable*  mischief,  and  extends  only 
-I  to  the  fact  of  waste  and  not  to  the  question  of  title.  lb.  254,  note  6. 
and  the  cases  there  cited.  On  looking  into  the  proceeding,  I  observe, 
that  although  the  defendant  has  answered,  neither  the  bill,  answer,  or 
affidavits  have  been  filed  ;  and  I  suppose  that  this  formality  has  been 
waived  by  the  counsel,  and  that  the  defendant  had  notice  of  the  affidavits 
before  the  answer  was  put  in — one  of  them  is  indeed  endorsed  on  the  bill, 
and  no  objection  has  been  raised  on  that  account — I  am  therefore  of 
opinion  that  the  affidavits  are  admissible.  It  is  therefore  ordered  that 
an  injunction  do  issue  to  restrain  the  defendant  from  cutting  wood  or 
timber,  on  the  land  described  in  the  conveyance  from  James  Cayce  to 
Fabriel  Friday,  referred  to  in  the  pleadings,  until  the  trial  and  final 
determination  of  the  action  at  law  brought  by  the  plaintiffs  against  the 
defendant  also  referred  to  in  plaintiff's  bill,  from  trespass  thereon,  or 
until  the  further  order  of  this  Court. 

De  Saussure,  for  the  appellant. 

Gregg,  contra. 

On  appeal,  the  following  opinion  was  delivered  : — 

De  Saussure,  Chancellor.  This  was  a  bill  filed  to  obtain  an  injunc- 
tion to  restrain  the  defendant  at  law  from  committing  waste  by  cutting  off 
timber  from  the  land  in  question,  pending  an  action  of  trespass  to  try 
title  at  law,  brought  by  plaintiff,  Kinsler,  against  defendant,  Clarke.  It 
was  alleged  that  the  chief  value  of  the  land  consisted  in  the  timber  which 
the  defendant  was  cutting  down  :  and  that  he  was  insolvent,  and  not  able 
to  answer  in  damages  for  the  injury  done. 

These  allegations  were  sustained  by  affidavits.  The  answer  denied  the 
insolvency. 

The  claim  of  both  parties  to  the  title  was  set  forth  in  the  pleadings, 
and  the  Chancellor  on  the  Circuit,  to  put  an  end  to  litigation  and  the 
multiplicity  of  suits,  made  a  decree  on  the  question  of  right.  But  as  this 
Court  is  unwilling  to  decide  on  the  question  of  title,  which  is  pending  in 
a  suit  at  law,  it  will  make  no  decree  on  the  appeal  on  that  ground,  but 
will  leave  the  parties  to  the  litigation  of  the  title  in  the  Court  of  Law,  to 
which  the  Court  remits  them. 

The  ordy  question,  then,  for  the  judgment  of  the  Court,  is  on  the 
*622l  ^PP^^^  h-om  the  decree  of  the  Chancellor  granting  an  injunction 
^restraining  the  defendant  at  law  from  cutting  down  timber  on  the 
land  in  dispute,  until  the  question  of  right  should  be  decided. 

The  appeal  made  was  on  the  ground,  that  in  a  mere  case  of  trespass, 
no  injunction  ought  to  be  granted. 

Oil  a  careful  examination  of  the  decree  of  the  Chancellor  on  the  Cir- 
cuit, I  concur  entirely  with  him,  in  directing  an  injunction  to  be  issued  in 


*622]  COLUMBIA,  MAY,  1837.  475 

this  case.  He  has  pLaced  the  interposition  of  the  Court,  for  the  protec- 
tion of  the  laud  in  question  from  irreparable  injury,  for  which  the  remedy 
would  be  doubtful  and  uncertain,  on  the  true  grounds  :  and  I  concur 
entirely  with  him.  Nor  is  this  doctrine  and  practice  new  in  England  or 
in  this  country. 

In  analogous  cases,  this  branch  of  preventive  justice  is  freely  adminis- 
tered in  England,  and  in  this  State  several  important  decisions  have  been 
made  in  the  same  spirit. 

The  case  of  Brookes  &  Marsh  from  Edgefield  (Col.  MS.  cases),  was 
decided  on  great  argument,  in  which  the  Circuit  Court  granted  an  injunc- 
tion pendente  lite  to  restrain  a  party  in  possession  from  cutting  off  the 
timber  from  a  tract  of  land  valuable  almost  wholly  for  its  timber  ;  and  he 
was  alleged  on  affidavits  to  be  insolvent  and  incapable  of  answering  in 
damages.     And  this  decree  was  solemnly  affirmed. 

It  is  ordered  that  the  decree  on  this  point  be  affirmed,  and  the  injunc- 
tion continued. 

Appeal  on  this  point  dismissed. 

Chancellors  Johnson,  Harper  and  Johnston,  concurred. 


Daniel  S.  Black  v.  John  Hair  and  Peter  Black, 

A  mortgagee  of  personalty  does  not  fall  ■within  the  principle  which  prevents  a 
trustee  to  sell  from  buying  at  his  own  sale  ;  but  he  holds  such  a  trust  character 
as  to  throw  the  burden  on  him  of  showing  the  fairuess  of  his  purchase. 

The  bill  states  that  the  plaintiff  gave  his  father,  James  Black,  a  mort- 
gage on  upwards  of  twenty  negroes,  together  with  horses,  stock,  planta- 
tion tools,  &c.,  to  secure  the  payment  of  $1000  annually  for  twelve  years, 
commencing  on  1st  January,  1829,  conditioned  that  in  default  of  pay- 
ment, the  said  James  Black,  his  executors,  administrators,  &c.,  might 
advertise  and  sell  the  said  property  to  the  highest  bidder,  to  satisfy  the 
said  notes,  returning  the  overplus.  That  James  Black  died,  and  defend- 
ants administered  on  his  estate  ;  and  default  being  made  in  payment  of 
the  notes  *as  aforesaid,  they  proceeded  to  sell,  on  two  different  r^r-^yo 
days,  several  of  the  negroes  and  other  property,  and  themselves  •- 
purchased  some  of  the  negroes  and  other  articles  of  property,  at  inade- 
quate prices,  on  which  one  of  the  defendants  afterwards  made  profit  by 
selling  again.  The  bill  prays  that  the  sale  to  defendants  may  be  set 
aside,  on  the  ground  that  a  trustee  to  sell  cannot  purchase  at  his  own 
sale  ;  and  that  the  property  may  be  re-sold  at  their  risk. 

The  answer  admits  the  sale  and  purchase,  but  insists  that  the  sale  was 
fairly  conducted  ;  and  one  of  the  defendants  admits  that  he  made  a  profit 
of  $25  by  selling  a  slave  he  bought  on  the  day  of  sale.    Denies  fraud,  &c. 

Chancellor  De  Saussure,  before  whom  the  cause  was  heard,  decreed 

on  this  part  of  the  case  as  follows  : — 

As  to  the  conduct  of  the  administrators  in  conducting  the  sales  of  the 
slaves,  the  evidence  is  conclusive  that  they  were  fairly  made,  and  brought 
fair  prices.     As  to  the  minor  articles,  although  some  of  the  circumstances 


476  SOUTH    CAROLINA    EQUITY    REPORTS.  [*623 

at  first  induced  doubt,  yet  I  agree  with  the  Commissioner,  that  upon  the 
whole  there  is  no  sufficient  ground  to  vacate  the  sales. 

The  plaintiff  appealed,  and  insisted  that  the  defendants  were  trustees 
to  sell,  and  sustaining  that  character  they  were  not  at  liberty  to  purchase 
at  their  own  sale  :  that  all  the  reasons  applicable  to  other  trustees  existed 
here,  where  the  time,  place  and  credit  were  fixed  by  them,  and  the  auc- 
tioneer was  their  agent.  And  on  the  evidence,  it  was  argued  that  the 
sale  was  not  fairly  conducted  ;  at  least  was  so  suspicious  that  defendants 
should  pay  the  costs. 

Herndon  and  Caldwell,  for  appellants. 

Pope,  contra. 

Johnston,  Chancellor.  A  majority  of  the  Court  is  of  opinion  that 
the  plaintiff's  appeal  cannot  be  sustained. 

The  opinion  of  the  Court  (in  which,  to  avoid  being  misconceived,  I 
state  that  I  do  not  concur)  is,  that  a  mortgagee  of  personalty  does  not 
fall  within  the  principle  which  prevents  a  trustee  to  sell  from  buying  at 
his  own  sale.  It  is  my  province  to  state  the  reasons  which  have  con- 
ducted my  brethren  to  this  conclusion. 

^  -,  *A  creditor  holding  a  mortgage  security  is  a  trustee  to  sell,  not 
-•  only  for  the  benefit  of  the  mortgagor,  but  for  his  own  also.  If  he 
were  not  at  liberty  to  bid,  he  would  be  deprived  of  the  means  of  pro- 
tecting his  own  interests  as  creditor.  The  mortgagor  is  at  liberty  to  bid 
also,  and  has  thus  the  means  of  entering  into  fair  competition  with  the 
mortgagee,  and  compelling  him  to  give  a  fair  and  full  price. 

But  the  Court  is  of  opinion,  that  although  a  mortgagee  does  not  stand 
in  that  relation  to  the  mortgagor  which  would  subject  him  to  an  order 
setting  aside,  as  of  course,  his  purchase  at  his  own  sale  ;  yet  that  he  holds 
such  a  trust  character,  as  to  throw  the  burden  on  him  of  supporting  his 
purchase  by  proof  of  fairness. 

In  this  case,  the  Commissioner  and  Chancellor  have  drawn  an  inference 
from  the  evidence  before  them,  that  there  was  no  actual  fraud  in  the  sale  ; 
and  they  appear  to  be  well  warranted  in  their  conclusion. 

Chancellors  De  Saussure,  Johnson  and  Harper,  concurred. 


Nancy  King,  and  Others,  v.  Mary  Johnson,  The  Executor  of  Wm. 

King,  and  Others. 

One  having  a  lawful  •wife  and  children,  separated  from  them,  and  lived  in  a  state  of 
adultery  with  a  woman  by  whom  he  had  several  illegitimate  children,  and  with  the 
proceeds  of  their  labor  purchased  lands,  and  had  the  conveyances  executed  to  the 
natural  children :  Held,  that  the  father  might  permit  his  natural  children 
to  receive  the  profits  of  their  labor  and  might  invest  those  profits  for  them  ;  and 
that  such  investment  was  no  violation  of  the  Act  of  ]7y-'),  prohibiting  gifts  and 
conveyances,  exceeding  one-fourth  of  his  estate,  by  a  man  having  a  wife  or 
children,  to  a  woman  with  whom  he  lives  in  adultery,  or  his  illegitimate  children. 
[*G26] 

Edgefield,  June  Term,  1836.     Bill  for  relief,  partition,  &c. 


*624]  COLUMBIA,  MAT,  1837.  477 

The  plaintiff,  Nancy  Kinp;,  was  the  Icg-itimatc  wife  of  tlie  (IcfciKhint's 
testator,  by  whom  he  had  two  sons,  who  are  also  plaintiffs.  Ai)oiit  thirty 
years  ago,  the  testator  separated  from  his  wife,  and  soon  after  attached 
himself  to  the  defendant,  Mary  Johnson,  with  whom  he  lived  in  a  state 
of  adultery  nntil  his  death  in  1835  ;  and  had  by  her  a  numerous  family 
of  illegitimate  children,  who  are  parties,  defendants.  The  defendant, 
Mary,  and  the  children,  assumed  the  name  of  the  testator,  and  they  all 
lived  together  as  a  family,  of  which  he  was  regarded  by  themselves  and 
the  neighborhood  as  the  head.  In  1820,  the  testator  purchased  two  or 
more  tracts  of  land,  containing  together  about  four  hundrcil  and  twenty 
acres,  and  procured  the  conveyances  to  be  executed  to  and  in  the  names 
of  his  illegitimate  sons  ;  and  the  plaintiff's  bill  prays,  that  these  convey- 
ances may  be  set  aside  *and  the  lands  partitioned  amongst  them,  r:);/..)- 
according  to  their  interests,  on  the  ground,  that  they  are  in  viola-  ^ 
tion  of  the  Act  of  1795  (1  Brev.  Dig.  68),  which  declares  that  all  gifts 
and  conveyances,  in  whatever  form  or  manner,  by  one  having  a  lawful 
wife  or  children,  in  favor  of  a  woman  with  whom  he  lives  in  adultery  or 
illegitimate  children,  shall  be  yoid,  so  far  as  the  same  shall  exceed  one- 
fourth  part  of  his  estate,  real  and  personal. 

The  defence  concedes  that  the  testator  made  the  contracts  to  purchase 
the  lands,  and  procured  the  conveyances  to  be  executed  to  the  defendants, 
his  illegitimate  sons  ;  but  avers  that  the  purchase-money  was  paid  by  the 
proceeds  of  the  labor  of  the  defendants,  and  not  with  the  money  of  the 
testator  or  any  separate  property  of  his  own. 

At  the  time  the  testator  abandoned  his  wife  and  attached  himself  to 
the  defendant,  Mary,  he  is  represented  to  have  been  poor  and  without 
credit,  a  drunkard  and  gambler,  and  so  continued.  In  the  language  of 
some  of  the  witnesses,  he  "  never  would  work,"  and  most  of  them  concur 
in  saying,  that  his  success  in  accumulating  property  was  the  result  of  the 
industry  and  economy  of  Mary  and  his  illegitimate  children.  About  the 
time  he  made  the  contract  for  the  purchase  of  the  land,  Mary,  the  defend- 
ant, complained  that  it  was  hard  that  the  fruits  of  the  labor  of  her 
children  should  go  to  others  (referring  obviously  to  the  provisions  of  the 
Act  before  recited.)  The  testator  conceded  that  her  children  had  made 
the  property  he  had,  and  said  that  he  would  procure  the  titles  to  be  made 
to  them,  to  prevent  his  lawful  wife  and  children  from  getting  the  land. 

Johnston,  Chancellor.  A  very  attentive  re-examination  of  all  the  tes- 
timony offered  at  the  trial,  has  but  served  to  confirm  me  in  the  impres- 
sion it  then  made  on  me,  that  the  labor  of  Mary  Johnson's  children  pro- 
cured all  the  property,  the  conveyances  for  which  were  made  in  their 
names  :  and  that  any  agency  which  Wm.  King  had  in  accumulating  the 
property  of  the  family,  is  more  than  compensated  by  the  property  which 
he  claimed  as  his  own,  and  disposed  of  by  his  will. 

I  am  satisfied  by  the  reflection  I  have  been  able  to  bestow  on  the  sub- 
ject, that  the  natural  children  were  so  far  strangers  to  Wm.  King,  that 
they  could  claim  the  profits  of  their  labors  ;  that  he  was  at  liberty  to  act 
as  their  trustee  for  investing  those  profits  in  property  *for  them,  r^^fcya' 
and  that  the  investment  was  no  violation  of  the  spirit  of  the  Act  L 
of  1795,  That  Wm.  King  adopting  them  as  his  own,  and  holding  out 
their  mother  as  his  wife,  \yould  have  been  liable  to  creditors  on  the  score 


478  SOUTH   CAROLINA    EQUITY   REPORTS.  [*626 

of  contract,  is  true ;  but  because  he  could  make  himself  liable  by  contract 
for  these  children,  it  by  no  means  follows  that  he  could  take  their  earuings 
from  them  ;  he  could  not  take  them  from  them,  but  by  virtue  of  a  con- 
tract with  them.  But  they  were  minors  and  incapable  of  binding  them- 
selves. Much  less  was  he  bound  to  take  their  earnings,  even  if  he  was  at 
liberty  to  do  so.  Even  if  creditors  could  have  claimed  the  earnings  or 
property  of  the  natural  children  in  discharge  of  necessaries  furnished  on 
the  contract  of  the  father,  (which,  according  to  Proctor  v.  M'Call,  2 
Bailey's  R.  302,  they  could  not  do,  unless  they  were  deceived  in  the  re- 
lation between  them,)  the  legitimate  family  who  are  volunteers  under  the 
father,  cannot  claim  that  as  a  part  of  his  estate,  which  was  in  conscience 
no  part  of  his  property. 

The  bill  must  therefore  be  dismissed  as  to  all  the  property  the  convey- 
ances for  which  were  executed  to,  and  stand  in,  the  names  of  the  natural 
children,  and  it  is  decreed  accordingly. 

The  plaintiffs  appeal  from  the  decree  in  this  case,  dismissing  the  bill 
as  relates  to  the  lands  embraced  in  the  conveyances  to  the  defendants,  the 
illegitimate  children  of  Wm.  King,  and  move  the  Court  to  reverse  the 
decree,  on  the  ground  : 

That  those  conveyances  are  in  violation  of  the  Act  of  1795, 

Griffin,  for  the  appellants,  contended,  that  except  the  right  to  inherit, 
illegitimate  children  are  put  on  a  footing  with  legitimate.  2  Kent  Com. 
214.  If  the  putative  father  adopt  an  illegimate  child  and  take  him  under 
his  care  and  protection,  he  is  liable  for  necessaries.  Hesketh  u.  Cowing, 
5  Esp.  N.  P,  131 ;  2  Kent's  Com.  193,  214.  And  the  relation  is  so  well 
recognized,  that  an  information  will  lie  for  the  abduction  of  a  bastard 
daughter  under  the  care  of  her  father.  Rex  v.  Cornforth,  2  Str.  1162. 
See  also  1  T.  R.  101  ;  1  Ray.  68.  So  a  step-father  is  not  bound  to  main- 
tain the  child,  but  if  he  assumes  the  protection  and  care  of  the  child,  he 
is  bound  for  necessaries.  3  Esp.  N.  P.  Ca.  1 ;  3  Petersdorf,  130.  The 
father  in  this  case  living  with  the  bastard  children  and  their  mother — 
regarded  as  the  head  of  the  family,  assumed  all  the  liabilities  of  a  lawful 
^nc)h-\  parent,  and  consequently  acquired  all  the  rights  of  one,  of  *which 
-'  was  the  right  to  the  profits  of  their  labor.  Whatever  was  acquired 
by  the  joint  efforts  of  the  father  and  children,  became  legally  his — as 
much  so  as  if  acquired  by  his  own  labor,  or  derived  by  descent,  or  will. 
He  had  then  no  right  to  dispose  of  it  contrary  to  the  act;  and  the  mode 
resorted  to  is  plainly  an  attempt  to  evade  it,  which  the  Court  should 
prevent, 

D.  L.  Wardlaw,  contra.  Whatever  may  be  the  law  as  to  the  control 
a  putative  father  may  exercise  over  his  bastard  children,  and  whether  he 
may  or  may  not  appropriate  the  proceeds  of  their  labor  to  his  own  use, 
he  may  decliue  the  right  to  make  such  appropriation.  There  is  no  rule 
of  law  to  compel  him  to  do  it.  He  might,  and  probably  did,  stipulate 
with  the  mother  that  the  children  should  have  their  own  earnings.  The 
evidence  favors  this  conclusion,  and  there  is  nothing  contrary  to  law  in 
such  an  arrangement. 

Chancellor  Johnson  delivered  the  opinion  of  the  Court. 

The  decree  of  the    Circuit  Court,  dismissing  the  plaintiffs'  bill,  is 


*627]  COLUMBIA,  MAY,  1837.  479 

founded  on  the  conclusion  tliat  the  facts  on  which  the  defence  rests  are 
true,  and  upon  a  careful  review  of  the  evidence  taken  on  the  trial  that 
seems  to  be  the  necessary  conclusion. 

On  the  argument  here,  error  in  the  conclusion  as  to  the  matters  of  fact 
has  not  been  much  pressed  ;  but  conceding  that  to  l)e  correct,  it  has 
been  insisted  that  as  the  testator  took  these  children  under  his  immediate 
care  and  protection,  and  provided  for  and  treated  them  in  all  respects  as 
a  father  would  his  legitimate  children,  the  obligations  and  duties  of  legiti- 
mate children  devolved  on  them  ;  consequently  in  law  he  was  entitled  to 
the  ])roceeds  of  their  labor,  and  the  application  of  them  to  the  purchase 
of  lands  for  their  use  was  a  violation  of  the  act  referred  to. 

The  obligations  between  parents  and  children  are  reciprocal.  On  the 
pareut  devolves  the  duty  of  maintaining,  educating  and  providing  for  the 
child  ;  in  return  for  which  the  child  owes  obedience  and  assistance  during 
minority,  and  reverence  and  respect  always ;  and  it  follows  necessarily, 
that  if  in  law  either  are  absolved  from  these  obligations,  so  also  is  the 
other.  Now,  it  is  very  clear  that  the  putative  father  is  not  entitled  in 
law  to  the  custody  of  his  natural  child,  in  op])osition  to  the  claims  of  tlie 
mother ;  nor  is  he  bound  to  provide  for  it  further  than  is  required  by 
express  enactments*  of  the  legislature.  2  Kent  Cora.  178,  1st  Ed.  r*/.i>Q 
The  child  cannot  inherit  from  the  father,  and  the  extent  to  which  L 
the  father  can  provide  for  his  illegitimate  child,  is  limited  by  the  Act  before 
referred  to.  The  father  is  not,  therefore,  entitled  in  law  to  the  services 
of  his  natural  child.  It  is  said,  however,  that  when  a  father  assumes 
and  discharges  the  duties  of  a  parent,  corresponding  duties  arise  on  the 
part  of  the  natural  child  ;  and  this  is  true  so  long  as  these  relations  exist. 
But  these  relations  are  merely  conventional,  and  being  voluntary,  may  be 
dissolved  at  pleasure.  Not  so  as  to  the  relations  between  the  father 
and  his  legitimate  children.  The  obligations  between  them  are  imposed 
by  law,  and  neither  can  be  absolved  from  them.  The  right  of  the  puta- 
tive father  to  the  custody  and  services  of  his  natural  child,  must  therefore 
arise  out  of  contract,  iu  which  the  parties  are  at  liberty  to  stipulate  for 
themselves.  There  is  certainly  nothing  in  these  relations  to  prevent  the 
father  from  rewarding  the  child  for  its  labor,  or  being  its  agent  to  invest 
the  proceeds ;  on  the  contrary,  in  despite  of  the  stern  policy  which  alien- 
ates the  bastard  from  his  putative  father,  nature  has  bound  them  together 
by  ties  which  cannot  be  severed  ;  and  it  is  impossible  to  resist  the  feeling 
that  there  is  a  moral  duty  imposed  on  the  father,  to  aid  the  child  when  he 
can  do  so  without  violating  the  law,  or  doing  wrong  to  others. 

I  am  well  aware  that  there  is  much  danger  of  abuse  in  the  application 
of  this  principle,  and  that  without  great  circumspection  it  will  be  made  a 
"cover  for  evading  the  Act,  but  of  its  correctness  there  can  l)eno  question  ; 
and  abuses  may  be  guarded  against  by  requiring  clear  and  unequivocal 
evidence  of  the  fairness  and  reasonableness  of  the  transaction.  Of  this, 
the  present  case  may  serve  as  an  example;  for  it  is  apparent  that  the 
defendants'  testator  was  a  mere  drone  in  the  hive,  and  that  the  land  con- 
veyed to  the  defendants  is  a  very  inadequate  compensation  for  the  long 
and  faithful  services  of  the  defendants^  out  of  the  proceeds  of  which  it  was 
paid  for. 

The  case  of  Hesketh  v.  Go  wing,  5  Esp.  N.  P.  Rep.  131,  has  been  re- 
ferred to,  for  the  position  that  the  putative  father  is  liable  for  necessaries 


480  SOUTH   CAROLINA   EQUITY    REPORTS.  [*628 

provided  for  a  bastard  child  whom  he  had  adopted  as  his  own  :  and 
hence  it  is  concluded  that  out  of  this  relation  all  the  obligations  of  parent 
and  child  arise.  And  this  is  put  expressly  on  the  ground  of  an  implied 
contract,  arising  out  of  the  defendant  holding  himself  out  to  the  world  as 
*R9Qn  being  bound  to  provide  *for  the  child,  and  not  on  the  footing  of 
-I  parent  and  child ;  and  the  same  rule  would  obtain  in  the  case  of 
a  foundling  or  other  stranger. 

There  are  doubtless  many  cases  in  which  a  quasi  consanguinity  between 
the  putative  father  and  his  bastard  child,  would  be  recognized  ;  as  in 
Haines  v.  Jeffel,  1  Lord  Ray.  68,  in  which  it  is  said  that  the  father  and 
illegitimate  daughter  are  within  the  degrees  of  consanguinity  in  which 
marriages  are  prohibited.  So  in  Rex  i?.  Cornforth,  2  Str.  1162,  where 
it  is  held  that  an  information  would  lie  for  the  abduction  of  a  bastard 
infant  daughter  being  under  the  care  of  her  putative  father.  But  'these 
are  exceptions  to  the  general  rule,  arising  from  moral  and  necessary 
causes,  and  by  no  means  impugn  the  rule  itself. 

It  is  therefore  ordered  and  decreed  that  the  appeal  be  dismissed,  and 
that  the  decree  of  the  Circuit  be,  and  the  same  is,  hereby  affirmed. 

Chancellors  De  Saussure,  Harper  and  Johnston,  concurred. 


A.  D.  Jones  and  T.  Briggs  v.  J.   H.  Blake  and  E.  H.  Blake,  his 

Wife,  and  Others. 

What  will  be  sufficient  evidence  of  delivery  to  constitute  a  gift.  [*682] 
A  former  decree  against  one  as  administrator  on  a  bill  to  compel  delivery  of  slaves 
claimed  under  a  gift  from  intestate,  will  not  conclude  his  rights  as  creditor,  on  a 
bill  by  him  against  the  former  plaintiffs  to  set  aside  the  conveyance  for  fraud. 
[*635] 
The  decision  in  Smith  vs.  Henry,  (1  Hill,  Ifi,)  that  a  debtor  in  giving  a  preference 
by  conveyance  of  his  property,  to  one  creditor  over  another,  shall  not  secure  an 
advantage  to  himself  at  the  expense  of  creditors  as  the  price  of  such  preference, 
means  a  certain  direct  benefit  or  advantage  to  be  derived  from  the  use  of  the 
property.  And  therefore,  where  a  debtor  transferred  slaves  to  his  daughter  in 
satisfaction  of  a  precedent  debt  and  retained  possession  of  them  under  an  agree- 
ment to  pay  hire,  the  conveyance  was  held  to  be  valid,  and  was  sustained  against 
the  other  creditors.  [*636] 

Before  Chancellor  Johnston,  Fairfield,  July,  1835. 

In,  or  before  1829,  the  defendants,  J.  H.  Blake  and  wife,  filed  their 
bill  against  the  plaintiff,  A.  D.  Jones,  as  administrator,  and  the  heirs  at 
law  of  James  Goodwyn.  The  object  of  that  bill,  and  the  case  then  made, 
will  be  understood  from  the  following  extract  from  the  decree  of  Chan- 
cellor Harper,  before  whom  it  was  heard  in  July,  1829  : — 

"  The  principal  object  of  the  bill  is  to  compel  the  delivery  of  certain 
slaves  mentioned  in  it,  and  to  have  an  account  of  their  hire.  These  slaves 
are  charged  to  have  been  legally  transferred  and  delivered  to  the  plaintiffs, 
by  the  defendant's  intestate.  Major  James  Goodwyn,  who  was  the  father 
of  the  plaintiff,  Mrs.  Blake,  in  the  latter  end  of  the  year  1824.  The 
charge  is,  that  the  slaves  were  delivered  in  satisfaction  of  a  precedent 
debt,  which  was  due  by  the  intestate  to  his  daughter,  for  a  part  of  her 


*629J  COLUMBIA,   MAY,    1837.  481 

deceased  mother's  estate,  which  consisted  of  a  chose  in  action,  not  reduced 
into  possession  *by  the  intestate,  during  the  life  of  his  wife.  The  r:^no(. 
intestate  had  administered  on  the  estate  of  his  deceased  wife,  and  L 
was  guardian  of  his  said  daugliter. — Or,  if  the  transfer  of  the  property 
should  not  be  established,  the  bill  seeks  to  cover  this  demand,  which  is 
claimed  to  be  ranked  as  a  bond  debt. 

"  The  principal  points  made  in  this  case  were,  whether  there  was  any 
actual  delivery  of  the  slaves,  so  as  to  transfer  the  legal  title  ;  whether,  if 
there  was  evidence  of  this,  it  was  a  gift,  voluntary,  or  for  a  valuable  con- 
sideration, in  satisfaction  of  a  previous  debt ;  and  in  fact,  whether  any 
such  debt  existed  ;  whether  that  which  is  supposed  a  chose  in  action,  was 
not  property  in  possession  on  which  the  intestate's  marital  rights  had 
attached. 

"  It  may  be  observed  here,  that  much  of  the  evidence  and  of  the  argn- 
raent  seemed  to  be  directed  to  this  point — Whether,  if  there  be  sufficient 
evidence  of  the  gift  or  transfer,  as  against  the  intestate  himself,  or  those 
claiming  under  him  as  volunteers,  it  may  not  still  be  fraudulent  and  void 
as  to  creditors.  The  question  seems  to  me  hardly  to  be  sufficiently  made 
by  the  pleadings ;  though  the  defendant,  Abraham  D.  Jones,  in  his 
answer,  prays  that  if  the  gift  or  transfer  is  established,  it  may  be  subject 
to  the  claims  of  creditors.  If  a  gift  or  conveyance  be  made  by  a  person 
indebted  at  the  time,  it  will,  from  the  mere  fact  of  its  being  voluntary,  be 
held  fraudulent  as  to  existing  creditors,  who  are  unable  to  obtain  satis- 
faction of  their  demands.  Now,  there  is  no  distinct  allegation  that  the 
debts  now  existing  against  the  estate  of  Major  Goodwyn,  were  due  at  the 
time  of  the  alleged  transfer,  or  that  the  estate  will  not  be  sufficient  to  pay 
all  debts,  independent  of  the  property  claimed  by  plaintiffs.  From  the 
amount  of  the  debts,  I  suppose  I  may  take  for  granted,  however,  that  a 
considerable  portion  of  them  existed  at  the  time  of  the  transfer;  and  if  I 
should  suppose  the  transfer  voluntary,  but  good  against  the  intestate  and 
his  personal  representative,  such  decree  might  be  made  as  is  suggested — 
that  it  should  be  confirmed,  subject  to  the  claims  of  creditors.  I  there- 
fore regard  the  point  of  the  transfer's  being  voluntary  or  founded  on  con- 
sideration, to  be  before  me,  so  far  as  regards  the  parties  to  this  suit ;  it 
is  unnecessary  to  say  that  creditors,  not  parties  to  the  suit,  will  not  be 
bound  by  the  decree.  But  a  voluntary  conveyance  may  be  fraudulent 
against  creditors  whose  debts  were  contracted  after  its  execution,  although 
it  be  founded  on  a  valuable  consideration.  The  difference  is,  that  in 
such  instances  there  must  be  *proof  or  circumstances  to  establish  r^poi 
the  actual  fraudulent  intention.  No  charge  of  fraud  of  this  sort  is  L 
made  in  the  pleadings,  nor  was  the  testimony  offered  which  would  be 
necessary  to  enable  the  Court  to  decide  on  such  charge.  I  do  not  there- 
fore consider  the  point  in  issue. 

"I  shall  first  consider  whether  there  was  a  sufficient  delivery  of  the 
slaves  claimed,  to  transfer  the  legal  title.  The  defendant,  Abraham  D, 
Jones,  in  his  answer,  admits  his  intestate  to  have  expressed  his  intention 
to  give  the  plaintiffs  ten  negroes ;  but  states  that  no  particular  slaves 
were  specified,  and  supposes  the  intention  was  never  carried  into  effect  by 
an  actual  gift  or  delivery.  Similar  declarations  of  a  future  intention  are 
testified  by  the  witnesses.  The  only  evidence  we  have  of  the  transfer's 
having  been  actually  made  and  of  the  slaves  included  in  it,   are  the  de- 


482  SOUTH   CAROLINA    EQUITY    REPORTS.  [*631 

clarations  of  the  intestate,  testified  by  Mrs.  Howell  and  Col.  Chappell. 
The  former,  after  mentioning  that  she  had  frequently  heard  Major  Good- 
wyn,  before  marriage  of  the  plaintiffs,  express  his  intention  to  give  his 
daughter,  the  plaintiff,  the  negroes,  Aggy  and  her  family,  and  Betty  and 
her  family,  whom  he  had  got  by  her  mother,  stated  that  after  the  mar- 
riage, she  had  heard  him  say  he  had  given  them  ;  that  the  plaintiff 
Blake,  said,  he  could  not  then  take  them  ;  he  could  only  hire  or  sell 
them:  that  Mvijor  Goodwyn  stated  himself  to  have  replied,  "  when  you 
get  a  plantation  I  will  send  them  to  you  ;  in  the  meantime,  I  may  as  well 
pay  you  hire  as  any  one  else  :" — the  hire  was  to  be  settled  by  the  Messrs. 
Jones.  Major  Goodwyn  said,  every  one  of  his  family  knew  the  negroes 
that  were  Eliza's.  Col.  Chappell  testified  to  repeated  conversations  with 
the  intestate,  in  which  he  expressed  his  intention  to  give  to  his  daughter 
the  negroes  he  had  obtained  with  her  mother  ;  that,  in  contemplation  of 
plaintiff's  marriage,  he  declared  his  intention  to  give  them  the  negroes, 
among  whom  the  witness  thinks  he  enumerated  the  women  Aggy  and 
Betty  :  After  the  marriage,  witness  understood  from  Major  Goodwyn  that 
he  had  given  the  negroes,  in  pursuance  of  his  promise  ;  witness  thinks 
he  recollects  him  to  have  said,  that  he  told  them  "  there  they  are,  take 
them  !" — Witness's  clear  impression  was  that  he  had  given  :  Major  Good- 
wyn enumerated  all  the  individual  negi'oes  he  had  given  :  The  witness 
recollects  but  a  few  of  the  names  from  the  conversation,  but  had  learned 
them  since  :  the  women  Aggy  and  Betty,  their  husbands  and  children, 
and  Martha,  were  the  negroes  specified.  The  witness  was  struck  with 
*RQ91  the  circumstance  *that  more  than  ten  negroes  were  enumerated — 
-J  the  number  Major  Goodwyn  had  promised  to  give.  Major  Good- 
win related  the  conversation  he  had  had  with  the  plaintiff  Blake  :  said  he 
had  agreed  to  pay  him  hire,  to  be  fixed  by  the  Joneses.  Witness  is  as 
certain  as  of  any  thing  that  ever  happened,  that  Major  Goodwyn  dis- 
tinctly said  he  had  agreed  to  pay  hire  for  the  negroes  enumerated. 

"The  question  is,  whether  this  testimony  is  sufficient  to  establish  a  de- 
livery. It  appears  to  me  so.  A  delivery  is  to  be  proved  in  the  saihe 
w^ay  as  any  other  fact.  It  seems  to  me  that  the  deliberate  admissions  of 
the  donor,  that  he  has  delivered,  are  about  as  satisfactory  as  his  calling 
witnesses  to  the  transaction  at  the  time.  As  is  said  in  repeated  adjudi- 
cations, Brashears  v.  Blasiughame,  1  N.  &  M'C,  224  ;  Reid  v.  Colcock, 
lb.  603,  when  a  party  says  he  has  given,  he  may  be  fairly  presumed  to 
have  known  what  is  necessary  to  a  gift,  and  to  have  observed  the  requisite 
ceremonies.  What  shall  consitute  a  delivery,  has  not  perhaps  been  very 
accurately  defined.  In  Davis  v.  Davis,  reported  in  a  note  to  Brashears 
and  Blashinghame,  the  idea  is,  that  any  act  will  do  which  is  significant  of 
the  donor's  intention  that  the  transfer  shall  take  effect  at  the  time.  The 
same  thing  is  to  be  found  in  other  authorities.  In  Reid  v.  Colcock,  and 
Fowler  v.  Stuart,  1  M'C.  504,  that  seems  to  be  regarded  as  a  sufficient 
delivery  which  would  authorize  the  donee  to  take  possession,  without 
committing  a  trespass.  Now,  when  Major  Goodwyn  said,  with  reference 
to  these  slaves,  "  There  they  are,  take  them,"  the  plaintiff  could  not  have 
committed  a  trespass  by  taking  possession  of  them,  whether  they  were 
present  or  not.  The  words  seem  to  indicate,  however,  that  they  were 
present ;  and  then  it  would  constitute  a  delivery  in  the  strictest  sense  of 
the  law,  even  applied  to  the  livery  of  land.     Blackstone  says,  "livery  in 


*632]  COLUMBIA,  MAT,  1837.  483 

law  is  when  the  same  is  not  made  on  the  land,  but  in  sight  of  it  only  ; 
the  feoffor  saying  to  the  feoffee,  "  I  give  you  yonder  land,  enter  and  take 
possession." 

"  As  observed  in  the  case  of  Reid  r.  Colcock,  parol  gifts  are  regarded 
with  jealousy  by  the  Courts,  and  only  established  on  tiie  most  satisfac- 
tory proof;  because  it  frequently  happens  that  men  make  loose  or  play- 
ful declarations  of  having  given,  or  intending  to  give,  property  to  tiieir 
children.  I  perceive  nothing  of  this  character  in  the  declarations  now  in 
evidence.  Major  Goodwyn's  conversations  with  both  the  witnesses  seem 
to  have  been  circumstantial  *and  detailed;  particularly  that  with  r^jj^oo 
Col.  Chappell,  with  whom  he  had  so  repeatedly  conversed  on  the  •- 
subject  of  making  such  a  provision  for  his  daughter.  It  seems  to  me 
that  he  went  designedly  into  the  detail  for  the  purpose  of  making  him  a 
witness  of  a  transaction  which  had  happened  to  pass  without  the  pres- 
ence of  a  witness.  There  would  be  more  reason  to  suspect  such  declara- 
tions, if  the  gift  were  made  to  one  for  whom  the  donor  was  under  no  ob- 
ligation to  provide,  or  if  it  appeared  to  be  a  sudden  act,  and  not  in  pur- 
suance of  any  previously  expressed  intention.  But  it  appears  he  had  a 
deliberate  purpose  for  years  to  make  some  such  provision  ; — the  defend- 
ant admits  that  he  expressed  such  intention  ;  he  was  under  a  natural  ob- 
ligation, and  according  to  the  testimony  of  Col.  John  Taylor  as  well  as 
of  Col.  Chappell,  under  the  obligation  of  his  honor  and  promise  to  do 
so.  It  is  true,  the  provision  was  somewhat  larger  than  he  had  expressed 
his  intention  to  make  ;  but  if  it  were  necessary  to  account  for  that,  it 
might  be  done  perhaps  by  the  circumstance  that  the  negroes,  Aggy  and 
Betty,  with  Martha,  were  those  specifically  that  he  intended  to  give,  and 
in  giving  them,  it  would  have  been  necessary  to  separate  the  families  un- 
less he  had  given  them  entire.  That  the  plaintiffs  did  not  take  posses- 
sion of  the  slaves,  is  sufficiently  accounted  for.  That  they  were  left  in 
the  infestate^s  possession,  might  be  a  material  circumstance,  if  we  ivere 
considering  the  claims  of  creditors  ;  hut,  so  accounted  for,  is  not  ma- 
terial as  between  the  parties  themselves.  If  the  testator  were  in  debt 
to  his  daughter,  that  would  be  a  circumstance  to  corroborate  the  testi- 
mony respecting  his  declarations  of  having  made  satisfaction;  but  he 
certainly  believed  and  acknowledged  himself  to  be  so.  The  agreement 
to  pay  hire  is  a  strong  evidence  of  the  transfer.  This  agreement  is  ad- 
mitted by  the  defendant ;  but  he  supposes  it  to  have  related  to  future 
hire,  after  the  contemplated  gift  should  have  been  completed.  Col.  Chap- 
pell, as  I  understand  him,  is  positive  that  it  related  to  the  hire  then  ac- 
cruing. This  seems  to  me  the  more  pi'obable.  It  is  uidikely  that  for  two 
consecutive  years  he  should  be  making  arrangements  to  have  the  hire 
valued  for  the  purpose  of  ascertaining  what  he  should  pay  after  some  fu- 
ture period,  when  the  value  of  the  hire  might  be  altered.  If  he  had  ac- 
tually paid  hire,  this  would  be  conclusive  evidence  of  the  transfer." 

His  Honor  then  went  into  evidence  of  the  consideration,  which  he  held 
was  sufficient  to  show  that  the  transfer  was  made  for  a  *valuable  rif^r-ot 
consideration  ;  and  then  decreed,  that  the  defendants  should  de-  '- 
liver  up  the  slaves  to  the  plaintiffs,  and  account  for  hire. 

The  present  bill  was  filed  by  the  plaintiffs  to  establish  their  claims  as 
creditors  of  Goodwyn,  alleging  that  his  estate  would  be  insolvent  and 
their  demands  unpaid,  unless  the  slaves  decreed  to  Mrs.  Blake  were  sub- 


4.84  SOUTH   CAROLINA   EQUITY   REPORTS.  [*634 

jected  to  tlieir  payment ;  and  charging  that  no  deed  or  bill  of  sale  was 
made,  and  as  the  alleged  transfer  was  not  accompanied  by  actual  posses- 
sion, that  the  transaction  was  fraudulent  and  void  as  to  creditors — and 
prays  that  the  slaves  may  be  charged  with  the  payment  of  their  demands. 

The  defendants,  Blake  and  wife,  in  their  answer,  set  up  by  way  of 
defence,  that  the  decree  in  Blake  v.  Jones  had  established  their  right  to 
the  slaves,  not  as  a  gift,  but  a  sale  for  value  in  payment  of  a  preceding 
debt,  which  could  not  be  affected  by  Goodwyn's  debts. 

The  plaintiffs'  demands  were  established  before  the  Commissioner. 
Exceptions  were  taken  to  his  report ;  and  the  statute  of  limitations 
pleaded  to  Briggs'  claims. 

JoHXSTON,  Chancellor.  In  the  case  of  Blake  v.  Jones,  Chancellor 
Harper  considered  Mr.  Jopes  before  the  Court  as  a  creditor.  He 
weighed  the  transfer  of  the  slaves  to  Mrs.  Blake  against  Jones'  claims  as 
creditor,  and  decided  that  the  transfer  was  valid. 

Although  I  do  not  see  how  this  decision  can  be  reconciled  with  Smith 
V.  Henry,  (1  Hill,  16,)  I  am  bound  by  it.  If  the  Appeal  Court  should 
think  fit  to  re-consider  their  opinion  affirming  Chancellor  Harper's 
decree,  they  can,  upon  the  authority  of  Price  v.  Xesbit  (1  Hill  Ch.  445), 
do  so.  But  this  Court  possesses  no  appellate  power.  As  the  Chancel- 
lor, whose  decree  has  been  affirmed,  decided  against  Jones  as  a  creditor 
holding  demands  which  existed  at  the  time  the  slaves  were  transferred  to 
Mrs.  Blake,  the  same  principle,  the  evidence  being  the  same,  must  sup- 
port the  transfer  against  Briggs.  This  obvious  view  of  the  case  renders 
it  entirely  unnecessary  to  consider  the  report  and  exceptions. 

From  this  decree  the  plaintiffs  appealed  on  the  grounds  : 

1.  That  the  gift  or  sale  of  the  slaves  to  Mrs.  Blake  is  void  as  to  credi- 
tors. 

^/.q--|       2.  That  the  decree  in  Blake  i'.  Jones  did  not  conclude  the  rights 
-'  *of  the  plaintiff,  Jones,  as  a  creditor  ;  and  did  not  and  could  not 
affect  Briggs,  who  was  not  a  party  to  the  case. 

Peareson  and  W.  F.  De  Saussuj-e,  for  the  appellants. 

GhappeU  and  Gregg,  contra. 

Harper,  Chancellor.  It  appears  to  me  that  the  decree  delivered  by 
myself  in  the  case  of  the  present  defendants  against  the  present  plaintiff, 
is  sufficiently  explicit  in  stating  that  the  claim  of  Mr.  Jones,  in  his  char- 
acter of  creditor,  was  not  considered.  And  it  is  manifest  that  it  could 
not  be  then  considered.  The  bill  was  against  Jones  as  administrator,  for 
the  pnr[)Ose  of  establishing  the  gift  or  transfer  of  the  slaves  by  his  intes- 
tate to  the  then  plaintift's.  This  was  the  case  he  was  called  upon  to  meet. 
But  being  a  creditor  of  the  estate,  he  had  a  right,  if  the  estate  were 
insolvent,  to  say  that  though  such  transfer  were  made,  it  must  be  regarded 
as  fraudulent  against  creditors.  This  defence  might  perhaps  have  been 
made  by  the  answer,  or  might  have  been  the  subject  of  a  cross  bill  But 
the  defence  was  not  made  by  the  answer  nor  the  evidence,  although  inti- 
mations were  thrown  out  that  the  interests  of  creditors  might  be  affected 
by  the  determination.  This,  however,  was  not  enough.  To  invalidate  a 
conveyance,  the  party  must  allege  and  prove  it  to  be  fraudulent.     To  do 


*635]  COLUMBIA,  MAT,   183  •  485 

this,  it  was  necessary  to  show,  not  only  that  debts  existed  at  the  time  of 
the  transfer,  but  that,  apart  from  the  property  transferred,  the  estate  wag 
insolvent.  This  showing  must  have  been  preliminary  to  any  relief  to  be 
afforded  by  the  Court.  The  Court  could  not  volunteer  to  direct  an 
inquiry  into  the  concerns  of  an  estate,  for  the  purpose  of  establishing  a 
charge  of  fraud,  upon  a  surmise  that  it  might  turn  out  insolvent.  Plainly 
it  was  impracticable  for  the  present  plaintiff,  Jones,  to  make  out  that  case 
at  that  time.  The  lands  of  the  estate  were  unsold  and  their  value  un- 
known, and  there  were  important  and  litigated  concerns  of  the  estate  to 
be  settled.  Could  the  Court  have  retained  the  bill  for  an  indefinite  length 
of  time,  in  order  to  afford  a  party  the  chance  of  making  out  a  charge, 
which,  if  he  had  alleged  it,  he  ought  to  have  been  prepared  to  prove  at 
the  hearing  ?  I  have  little  doubt  but  that  the  determination,  that  the 
transfer  was  founded  on  valuable  consideration,  was  regarded  at  the  time 
as  a  determination  in  effect  on  the  rights  of  Jones  as  creditor.  Before 
the  case  of  Smith  v.  Henry,  (1  Hill,  16,)  an  opinion  seemed  to  have 
*obtained,  that  to  show  a  conveyance  to  be  valid  as  against  credi-  r5ic/.qfi 
tors,  it  was  enough  to  prove  that  it  was  founded  upon  valuable  ^ 
consideration.  And  it  may  be  that  the  decision  in  that  case  has  sug- 
gested the  present  proceeding. 

The  case  being  properly  before  us  then,  we  are  first  to  inquire  whether 
it  comes  within  the  principle  of  the  case  of  Smith  v.  Henry.  It  appears 
to  me  that  it  does  not.  The  principle  of  that  decision,  as  it  is  expressed 
in  very  terms,  is,  that  the  law  allows  a  debtor  to  give  a  preference  to  one 
creditor  over  another,  "but  it  will  not  allow  him  to  secure  an  advantage 
to  himself,  at  the  expense  of  creditors,  as  the  price  of  such  preference." 
"An  advantage  to  himself,"  in  law,  of  which  the  function  is  to  adjust  the 
rights  of  property,  must  mean  an  advantage  in  relation  to  property,  pro- 
fit or  pecuniary  advantage.  It  could  not  mean,  for  instance,  the  gratifi- 
cation of  taste  or  vanity.  It  was  suggested  that  an  advantage  might  be 
obtained  by  quieting  other  creditors,  in  consequence  of  the  appearance  of 
property  in  the  donor.  This  is  a  sort  of  speculative  and  uncertain 
advantage  which  it  is  difficult  to  estimate,  and  perhaps  it  would  be 
impracticable  in  a  majority  of  cases  for  Courts  to  determine  whether  a 
donor  had  secured  such  an  advantage  or  not.  Still  I  think  the  considera- 
tion is  entitled  to  its  weight  in  considering  the  question  of  actual  fraud 
or  fairness  upon  all  the  circumstances  of  the  case.  But  whatever  weight 
it  might  be  thus  entitled  to,  it  does  not  come  within  the  principle  of  Smith 
and  Henry,  which  speaks  in  the  most  explicit  manner  of  the  certain, 
direct  benefit  or  pecuniary  advantage  to  be  derived  from  the  use  of  the 
property.  I  believe  there  is  scarcely  a  sentence  of  the  opinion,  in  rela- 
tion to  the  matter,  which  does  not  illustrate  this.  "  If  a  party,  indebted 
to  several,  goes  to  one  of  his  creditors  and  says,  '  my  whole  property  is 
not  more  than  sufficient  to  pay  you  ;  I  will  give  you  the  preference,  how- 
ever, and  assign  to  you,  provided  you  will  allow  me  to  have  the  use  of  it 
for  a  stipulated  length  of  time,  or  until  I  work  out  the  debt,' — this  is 
fraud  in  both."  The  use  spoken  of  is  of  course  for  the  donor's  own 
benefit.  "The  debtor  gains  what  he  is  not  entitled  to  at  the  expense  of 
creditors,  and  enjoys  the  property  independently  of  them."  The  creditor 
"gives  a  bribe  for  the  preference."  A  bribe  means,  in  law,  a  pecuniary 
benefit.  The  expression — "use  and  enjoy  the  property  as  his  own" — is 
7oL.  1.— 5i 


486  SOUTH   CAROLINA  EQUITY   REPORTS.  [*636 

frequently  repeated.  So  in  the  quotations  from  Twine's  case  and  Shep- 
pard's  Touchstone.  In  short,  I  cannot  think  that  there  is  any  ambiguity 
in  the  decision, 

:)f(>q^J-]  *ii  this  case,  the  proof  is  distinct  and  certain  that  the  donor 
-J  was  to  pay  hire  for  the  slaves.  Can  I  say  that  his  retaining  pos- 
session under  this  stipulation  was  the  securing  of  a  benefit  to  himself?  I 
do  not  see  how.  In  general,  a  party  who  hires  slaves  may  be  supposed 
to  do  so  for  his  own  convenience.  But  if  the  price  be  full  and  fair,  the 
law  must  regard  the  transaction  as  an  exchange  of  equivalents.  I  do 
not  suppose  that  it  would  be  generally  advantageous  to  cultivate  a  man's 
plantation  by  hired  slaves.  In  this  case,  the  hire  was  to  be  fair,  for  it 
was  to  be  valued  by  indifferent  persons.  And  it  appears  from  the  testi- 
mony of  Mrs.  Howell  in  the  former  cause,  that  Major  Goodwyn  con- 
sented to  hire  the  slaves,  not  for  his  own  convenience,  but  for  that  of  the 
donee,  Mr.  Blake,  who  had  no  land. 

I  am  well  aware  that  this  construction  may  occasion  attempts  to  evade 
the  rule  as  laid  down  in  the  case  of  Smith  v.  Henry.  But  it  must  be  the 
business  of  the  Court  to  guard  against  evasions.  If  the  stipulation  for 
hire  were  kept  secret  between  the  parties  themselves — if  the  hire  were 
very  inadequate — if  it  remained  for  a  long  time  not  paid  or  demanded — 
all  these  would  be  circumstances  to  show  the  stipulation  to  be  colorable  or 
evasive.  I  should  say  that  when  the  grantor  retains  possession  after  the 
sale,  the  presumption  of  law  is  that  he  does  so  for  his  own  benefit,  and 
that  the  burden  is  on  him  to  show  by  the  most  satisfactory  proof  that  he 
obtained  no  advantage  from  it.  This  has  been  done  in  the  present  case 
by  the  testimony  of  Mrs.  Howell  and  of  Col.  Chappell — and  indeed  in 
some  degree  by  that  of  the  present  plaintiff,  who  admits  that  he  knew 
that  a  transfer  of  the  slaves  was  intended,  and  that  he  and  his  father 
were  to  value  the  hire — on  which  the  claim  for  hire  was  established  and 
decreed  against  the  estate  of  Major  Goodwyn,  when  the  present  question 
was  not  under  consideration. 

Though  not  within  the  rule  of  Smith  v.  Henry,  and  though  there  was 
a  valuable  consideration,  still  the  transaction  might  be  fraudulent  if 
there  were  proof  of  an  actual  fraudulent  intention.  But  the  proof  is 
otherwise.  The  consideration  was  not  greatly  inadequate — though  it  is 
said  the  Court  will  not  look  nicely  into  considerations.  The  donor  then 
possessed  a  very  considerable  estate,  and  there  is  nothing  to  show  that 
he  had  the  slightest  reason  for  believing  himself  to  be  approaching  insol- 
vency. The  plaintiff  did  not  certainly  know  the  estate  to  be  insolvent  at 
the  hearing  of  the  former  cause.  He  did  what  he  had  long  intended,  and 
*6381  *^^'^^t  the  plaintiff  admits  that  he  knew  him  to  have  intended,  and 
-^  what  he  was  under  the  strongest  obligations  of  honor  and  con- 
science to  do.  Indeed  I  do  not  understand  the  charge  of  an  actual 
fraudulent  intention  to  be  urged  on  the  part  of  the  plaintiffs.  The  decree 
dismissing  the  bill  must  therefore  be  affirmed. 

Chancellors  De  Saussure  and  Johnson,  concurred. 

Chancellor  Johnston.     I  concur  in  the  result. 


*638]  COLUMBIA,  MAY,  1837.  487 

Thomas    M'Meekin,    Administrator    of   Wm     Brummet,   v.   F.    K 

Brummet. 

S.  B.  and  D.  B.  delivered  two  female  slaves  to  a  trustee  for  the  use  of  C.  P.,  and  if 

C.  P.  died  without  issue,  "  then  the  said  negroes  to  return  to  the  sons  of  8.  B.  & 

D.  B.  and  their  heirs  forever."  C.  P.  died  without  issue  At  the  time  of  the  gift, 
S.  B.  and  D.  B.  (the  donors)  had  each  one  sou  living,  and  afterwards  S.  P.  had 
other  sons  who  died,  and  the  son  of  D.  B.  died  before  the  death  of  C.  P.  at  whose 
death  the  only  living  son  of  either  of  the  donors  was  the  son  of  S.  P.  who  was  living 
at  the  time  of  the  gift.  This  son  recovered  the  negroes  and  their  increase  from 
the  representatives  of  C.  P.  and  took  them  into  possession  :  On  a  bill  by  the 
administrator  of  the  son  of  D.  B.  claiming  one-half  of  the  slaves  under  the  gift, 
it  was  held,  that  the  limitation  was  to  the  sons  of  S.  B.  and  D.  B.  living  at  the 
time  of  the  gift,  jointly,  as  if  it  had  been  to  them  by  name;  and  therefore  the  plain- 
tiff was  entitled  to  a  recovery.  [*638] 

Where  property  is  given  by  iviU,  to  be  distributed  among  a  class  of  persons  at  some 
future  time,  or  on  some  future  contingency,  all  are  let  in  who  come  into  existence 
before  the  time  or  happening  of  the  event,  and  none  can  take  but  those  answering 
the  description  ;  but  such  principle  does  not  apply  to  a  deed  or  gift  iriter  vivos.  A 
will  speaksat  the  time  of  the  testator's  death,  and  those  who  answer  the  descriptions 
of  legatees  at  the  time  will  take  unless  a  contrary  intention  appears  but  a  deed  or 
gift  speaks  at  the  time  when  made,  and  the  donee  under  it  must  be  such  as 
answers  the  description  at  that  time.  A  future  contingent  interest  may  be  given 
to  a  person  not  in  esse,  but  the  intention  must  be  plainly  expressed  ;  and  if  there 
be  a  person  to  answer  the  description  at  the  time,  it  will  never  be  applied  to 
another  afterwards  coming  into  existence  who  may  come  within  the  description. 
[*639] 

A  contingent  remainder  is  transmissible  to  the  personal  representative,  when  the 
existence  of  the  remainder-man  himself  at  the  time  of  the  event  does  not  consti- 
tute the  contingency.  [*642] 

The  right  of  survivorship  in  joint  tenancy,  taken  away  by  the  Act  of  1791.  [*643] 

In  decreeing  partition  of  slaves  recovered  by  defendant  in  a  former  suit  from  a  third 
person,  defendant  allowed  reimbursement  for  the  expenses  iu  proportion  to 
plaintiff's  interest.  [*643] 

Lancaster,  July,  1836.  The  following  Circuit  decree  presents  the 
case : — 

Harper,  Chancellor.  On  the  8th  day  of  January,  1792,  "William 
Brummet  delivered  two  female  slaves  to  Zadock  Perry,  who  signed  a 
receipt  for  them,  in  effect  declaring  a  trust  in  them  for  the  use  of  his  (the 
donee's)  daughter.  Comfort  Perry,  and  the  heirs  of  her  body,  "  but  should 
the  said  Comfort  die  without  children  to  heir  the  said  negroes,  then  the 
said  negroes  are  to  return  to  the  sons  of  Spencer  and  Daniel  Brummet, 
and  their  heirs  forever."  It  is  understood  that  the  slaves  had  been  pre- 
viously the  property  of  the  said  Spencer  and  Daniel  Brummet,  who  at 
the  time  of  the  gift  had  each  one  sou  living. 

The  defendant  was  the  sou  of  Spencer  Brnmmet ;  and  William  Brum- 
met, who  afterwards  died  in  childhood  and  before  his  father,  and  who  is 
the  plaintiff's  intestate,  was  the  son  of  Daniel  Brummet ;  Comfort  Perry 
afterwards  married  Nathaniel  Barber,  to  whom  the  slaves  and  their 
increase  were  delivered  in  1798,  and  in  whose  possession  they  remained 
until  the  death  of  Comfort  Perry,  without  issue,  in  1829;  at  whose  death 
the  defendant  was  the  only  living  son  of  either  Spencer  or  Daniel 
Brummet ;  Nathaniel  Barber  retained  possession  of  the  slaves  till  his  death, 
in  1832 ;  after  which  they  came  into  the  possession  of  his  administratrix, 
against  whom  an  action  was  brought  by  the  defendant,  a  recovery  had 


488  SOUTH  CAROLINA    EQUITY    REPORTS.  [*638 

*Vqol  ^^^^  *^®  slaves  *and  increase,  with  the  exception  of  one  named  Zed, 
-J  delivered  up  to  him.  It  is  agreed  that  Spencer  Brummet  had  two 
other  sons,  born  after  the  gift  in  1792,  who  died  respectively  in  1806  and 
1801.  The  plaintiff  in  right  of  his  intestate,  claims  one-half  of  the  slaves 
and  damages  recovered  by  the  defendant  from  the  administratrix  of 
Nathaniel  Barber,  as  being  equally  entitled,  under  the  limitation  to  the 
sons  of  Spencer  and  Daniel  Brummet,  by  the  gift  of  1192.  No  question 
arises  as  to  the  validity  of  the  limitation  to  the  sons  of  Spencer  and 
Daniel  Brummet;  that  was  decided  in  the  suit  at  law.  (2  Hill,  543.) 
The  question  is,  who  are  to  take  under  the  limitation  ?  I  am  of  opinion, 
that  it  must  be  construed  to  the  sons  of  Spencer  and  Daniel  Brummet 
then  living,  as  if  it  had  been  in  terms,  to  F.  K.  Brummet,  son  of 
Spencer  Brummet,  and  William  Brummet,  son  of  Daniel  Brummet. 

The  argument  on  the  part  of  the  defendant,  is  founded  on  the  class  of 
causes,  in  which  when  property  is  given  by  will,  to  be  distributed  a-mong 
a  class  of  persons  at  some  future  time,  or  on  some  future  contingency,  all 
are  let  in  who  come  into  existence  before  the  time  or  happening  of  the 
event;  and  it  is  urged  that  none  can  take  but  those  who  then  answer  the 
description ;  and  as  the  defendant  was  the  only  son  of  Spencer  or  Daniel 
Brummet  in  existence  at  the  death  of  Comfort  Barber,  that  he  alone 
could  take  under  the  limitation.  But  all  the  authorities  without  excep- 
tion apply  to  the  case  of  a  ivill,  and  no  such  principle  has  ever  been 
applied  to  a  deed  or  gift  inter  vivos.  As  observed  by  Lord  Mansfield, 
in  White  v.  Warner,  quoted  in  Denn  v.  Bagshaw,  6  T.  R.  512,  a  will 
speaks  at  the  time  of  the  testator's  death.  And  as  laid  down  in  other 
cases,  those  legatees  or  devisees  who  answer  the  description  at  the  time 
of  the  death  will  take,  unless  a  contrary  intention  appears  from  the  in- 
strument itself,  A  deed  or  gift  iJiter  vivos,  speaks  at  the  time  of  its 
execution,  and  the  grantee  or  beneficiary  under  it,  must  be  such  as 
answers  the  description  at  that  time.  I  do  not  mean  to  say,  that  a  con- 
tingent future  interest  may  not  be  given  by  deed,  to  a  person  not  in 
existence,  but  that  intention  must  be  plainly  expressed  in  the  instrument ; 
and  if  there  be  a  person  to  answer  the  description  at  the  time,  it  will 
never  be  applied  to  another  coming  afterwards  into  existence  who  may 
*rini  ^^'^^s  within  the  terms  of  the  description.  If  this  had  been  a 
-J  direct  gift  in  words  of  the  present  time,  to  "  the  sous  of  Spencer 
and  Daniel  Brummet,"  who  must  have  taken  ?  Undoubtedly  F  K.  and 
William  Brummet.  "  Sons"  is  a  good  name  of  purchase.  It  is  said 
that  purchases  are  good  by  a  certain  description  of  the  person  without 
surname  or  name  of  baptism ;  as  to  the  wife  of  J.  S.,  to  the  eldest  son, 
second  or  youngest  son,  all  the  sons,  &c.,  Co.  Lit.  [3  a.]  So  in  Wild's 
case,  6  Co.  IT,  it  is  said  that  if  a  man  devises  land  to  A  and  his  children 
or  issue,  who  has  children  or  issue  living,  here,  according  to  the  rule  of 
the  common  law  as  applied  to  a  conveyance,  the  parent  and  children  will 
take  jointly,  they  take  as  purchasers  by  the  name  of  "children  or  issue." 
But  it  is  said,  as  distinguished  from  the  rule  of  the  common  law  with 
respect  to  a  conveyance,  that  if  there  be  a  devise  to  A  and  his  issue  or 
children,  who  has  no  children,  A  will  take  an  estate  tail.  The  words 
"children  or  issue,"  are  words  of  purchase  exclusively  in  a  conveyance, 
and  cannot  have  the  effect  of  enlarging  the  estate  of  the  parent,  as  they 
have  in  a  will.    The  word  "  sons"  is'no  less  a  word  of  purchase.    Neither 


*6i0]  COLUMBIA,    MAY,    1S37.  489 

will  it  be  implied,  notwithstanding  the  express  mention  of  "children  or 
issue,"  that  they  take  a  future  interest  as  purchasers  in  remainder; 
because  that  purpose  is  not  plainly  declared  in  the  conveyance.  So  if 
these  slaves  had  been  given  to  Comfort  Perry  for  life,  remainder  to  the 
sons  of  Spencer  and  Daniel  Brummet,  I  take  it  to  be  equally  clear,  that 
there  would  have  been  a  vested  remainder  in  the  sons  of  Daniel  and 
Spencer  Brummet,  who  were  living  at  the  time  of  the  gift.  It  is  observed 
by  Lord  Hardwicke,  in  Ellison  v.  Airy,  1  Ves,  lU,  in  relation  to  a  will, 
"  The  Court  generally  takes  it  that  there  ought  to  be  a  legatee  in  being  ; 
and  therefore  will  not  construe  a  will  to  extend  to  persons  not  in  being, 
unless  the  testator  shows  his  intention  to  be  such  by  words  in  the  will ; 
which  is  the  rule  at  common  law,  as  to  contingent  devises  or  remainders, 
for  they  never  construe  them  contingent  or  executory  unless  compelled." 
Here,  in  the  case  supposed,  the  plain  import  of  the  words  would  give 
a  vested  remainder  to  the  sons  then  living,  and  I  am  to  seek  for  the  law 
which  would  let  in  others  under  a  gift  of  this  sort ;  though  this  is  the 
case  in  which  all  born  before  the  period  of  distribution  are  let  in  under  a 
will.  I  take  the  distinction  to  be  this  :  under  a  will  the  words  are  taken 
to  apply  to  persons  living  at  the  testator's  death  ;  but  others  may  be  let 
in  from  the  intention  plainly*  inferred  from  the  provision  :  in  a  con-  p^  „^ , 
veyance,  the  words  are  taken  to  apply  only  to  those  living  at  the  time  ^ 
of  execution  ;  and  the  Court  will  not  extend  it  to  others,  unless  it  is  abso- 
lutely impracticable  to  give  it  any  other  construction.  An  exception  is 
made  to  the  general  rule  in  the  case  of  a  will ;  there  is  no  such  exception 
in  the  case  of  a  deed.  It  is  absolutely  necessary  to  regard  the  limitation 
we  are  considering,  as  contingent  in  one  respect ;  the  property  is  only 
given  over  on  the  event  of  Comfort  Perry's  dying  without  children.  But 
there  is  no  necessity  whatever,  for  supposing  a  contingency  with  respect 
to  the  persons  who  should  take.  If,  as  contended  for  on  the  part  of  de- 
fendant, none  can  take  but  those  who  answer  the  description  at  the  time 
of  the  happening  of  the  event,  then  how  would  the  property  have  been 
disposed  of,  if  the  defendant  had  also  died  before  Comfort  Barber  ?  In 
all  the  cases  on  the  subject  of  letting  in  legatees  born  after  the  testator's 
death  and  before  the  period  of  distribution,  the  terms  of  the  will  ])hiinly 
import  a  distril)ution  among  a  class  or  classes  of  persons.  As  in  Ellison 
V.  Airy,  the  limitation  was  to  the  younger  children  of  a  nephew  equally 
to  be  divided,  and  the  terms  could  not  be  satisfied,  without  including  all 
younger  children.  In  Congreve  u.  Congreve,  1  B.  C.  R.  530,  "to  divide 
the  money  amongst  all  and  every  the  child  or  children."  In  Attorney 
General  v.  Crispin,  lb.  386,  "£50  each  to  the  children  of  D.  R,"  In 
Heathe  v.  Heathe,  2  Atk.  121,  "to  all  and  every  the  child  or  children," 
&c.  So  if  the  limitation  were  to  the  sons  of  one  individual,  this  might 
be  held  to  import  all  his  sons,  and  if  he  had  but  one  at  the  time,  neces- 
sarily to  import  those  hereafter  to  be  born.  But  here  are  no  words 
directing  any  division  or  distribution  ;  the  limitation  is  to  the  donees 
jointly ;  Spencer  Brummet  and  Daniel  Brummet  had  each  a  son,  and 
these  fully  satisfied  the  terms,  "  the  sons  of  Spencer  and  Daniel  Brum- 
met." The  general  language  of  the  cases,  departing  from  the  general 
rule  and  letting  in  legatees  not  in  existence  at  the  death  of  the  testator, 
is  that  it  is  an  indulgence  to  last  wills,  and  to  favor  a  provision  for 
families.     This  applies  still  more  strongly  to  marriage  settlements^  in 


490  SOUTH   CAROLINA   EQUITY   REPORTS.  [*641 

which  the  terras  "sons"  or  "children,"  always  contemplate  sons  or  children 
hereafter  to  be  born.  But  this  was  neither  a  will  nor  a  marriage  settle- 
ment. Spencer  and  Daniel  Bruramet  were  making  no  general  settlement 
of  their  affairs,  or  provision  for  their  families.  How  am  I  authorized,  in 
*fi49l  P'^^'^^^  ^^  ^^^^'  ^^  conclude  or  conjecture  that  *they  contemplate 
-^  any  other  sons  than  those  who  then  answered  the  description  ? 
They  seem  to  have  been  bestowing  a  benefit  on  a  third  person  ;  they 
parted  with  the  entire  property,  and  may  well  be  supposed,  on  a  contin- 
gency not  contemplated  to  happen,  to  have  given  this  chance  of  benefit  to 
their  sons  then  in  existence  and  whom  they  knew.  If  they  should  have 
other  children,  they  might,  in  making  a  future  settlement  of  their  affairs, 
made  such  disposition  among  them  as  might  seem  just  and  suitable.  Then 
if  William  Brummet  was  entitled  under  this  limitation,  was  his  right 
transmitted  to  his  personal  i-epresentative  on  his  death  ?  If  he  had  been 
solely  entitled  under  such  a  limitation,  there  can  be  no  question  but  it 
would  If  this  should  be  construed  a  gifc  to  Comfort  Perry  for  life,  re- 
mainder to  her  children  living  at  the  time  of  her  death,  with  contingent 
remainder  to  William  and  F.  K.  Brummet  in  the  event  of  their  being  no 
children,  (as  would  appear  to  be  the  true  construction,  according  to  the 
determination  of  this  Court  in  Henry  v.  Means,  2  Hill,  328,)  then  there 
can  be  no  doubt  but  that  a  contingent  remainder  is  transmissible  to  the 
personal  representative,  when  the  existence  of  the  remainder-man  himself 
at  the  time  of  the  event,  does  not  constitute  the  contingency.  But  sup- 
pose the  entire  estate  to  be  given  to  Comfort  Perry,  subject  only  to  be 
divested  in  the  event  of  her  dying  without  having  children.  The  rule, 
as  fully  settled  and  recognized  by  the  case  of  Jones  v.  Roe,  3  T.  R.  88, 
is  that  a,  jjossib'thfi/  coupled  with  an  interest  is  assignable,  descendible 
or  devisable.  See  also  Fearne,  548,  553,  and  the  cases  there  collected. 
Those  were  cases  of  executory  devises,  but  the  interest  is  exactly  the 
same  as  under  a  limitation  of  this  sort,  one  being  created  by  will,  the 
other  by  act  inter  vivos.  Mr.  Butler,  in  his  note  to  Fearne,  p.  384, 
after  speaking  of  conditional  limitations,  and  springing  or  shifting  uses, 
observes,  "Executory  devises  are  the  immediate  subject  of  this  part  of 
Mr.  Fearne's  essay,  but  his  positions  and  illustrations  are  always  directly 
or  indirectly  referrible  to  the  general  doctrines  of  law  on  all  limitations 
of  this  description,  whether  in  deeds  or  wills  "  And  this  is  certainly  true 
with  respect  to  the  time  within  which  they  may  be  limited  to  arise  ; 
(Lloyd  V.  Carew,  quoted,  Fearne,  2t5,)  or  as  to  their  being  assignable, 
devisable  or  transmissible. 

As  I  have  said  the  limitation  is  to  the  sons  Jointly,  there  is  nothing  to 
make  a  tenancy  in  common,  and  there  is  no  doubt  but  in  England,  if  one 
*6431  ^^^  ^'^^^  before  the  determination  of  the  contingency,*  the  other 
would  have  taken  the  whole  by  survivorship,  as  indeed  if  one  had 
died  after  the  determination  and  when  the  property  had  vested  in 
possession. 

But  under  our  statute  of  1191,  providing  "  That  where  any  person  shall 
be,  at  the  time  of  his  or  her  death,  seized  or  possessed  of  any  estate  in 
joint  tenancy,  the  same  shall  be  adjudged  to  be  severed  by  the  death  of 
the  joint  tenant,  and  shall  be  distributed  as  if  the  same  was  a  tenancy  in 
common;"  "and  that  in  cases  of  intestacy,  the  personal  estate  of  the 
intestate  shall  be  distributed  in  the  same  manner  as  real  estates  are  dis- 


^643] 


COLUMBIA,   MAY,    1837.  491 


posed  of  by  this  act."  I  believe  the  construction  of  our  Courts  has  uni- 
formly been,  that  any  interest,  of  any  sort,  in  which  there  may  be  a  joint 
tenancy,  shall  be  severed  by  the  death  of  one  joint  tenant,  and  the  share 
of  the  deceased  go  to  his  legal  representative. 

Indeed,  if  a  person  having  such  an  interest  in  severalty,  would  trans- 
mit it  to  his  legal  representative,  and  if  upon  the  falling  in  of  the  property 
it  must  be  distributed  under  the  act  as  personal  estate,  (which  seems  to 
be  matter  of  necessity,  for  otherwise  there  is  no  law  for  its  distribution,) 
there  is  the  same  necessity  for  applying  the  parts  of  the  act  quoted,  to  an 
interest  of  the  same  sort  held  in  joint  tenancy. 

In  decreeing  for  the  plaintiff,  it  seems  but  equitable  that  he  should 
reimburse  the  defendant  half  the  expenses  of  the  suit  at  law  in  which  !he 
slaves  were  recovered  ;  such  expenses  beyond  mere  costs,  I  suppose  must 
have  been  incurred.  It  is  ordered  and  decreed,  that  a  writ  of  partition 
issue,  to  divide  between  the  plaintiff  and  defendant  the  slaves  received  by 
the  latter  of  the  administratrix  of  Nathaniel  Barber,  under  the  recovery 
in  the  action  of  trover  before  mentioned  ; — that  defendant,  allow  account 
for  and  pay  to  plaintiff,  a  moiety  of  the  damages  recovered  and  received 
in  the  said  action  of  trover,  beyond  the  slaves  specifically  received,  with 
interest  from  the  time  that  the  same  was  received,  and  a  moiety  of  the 
hire  of  the  said  slaves  for  the  time  they  have  been  in  his  possession  ;  that 
the  Commissioner  take  an  account  of  the  expenses  incurred  by  the  de- 
fendant in  the  action  at  law  before  mentioned,  and  that  plaintiff  reim- 
burse to  defendant  a  moiety  of  the  said  expenses.  Parties  to  this  suit  to 
pay  their  own  costs. 

The  defendant  appealed. 

*Per  Curiam.  The  decree  of  the  Chancellor  is  af3Brmed  for  the  r^j^^i 
reasons  given.  '- 

Chancellors  De  Saussure  and  Johnson,  concurring. 

T.  Williams  and  Eaves,  for  the  plaintiff. 

Clarke,  De  Saussure  and  Clinton,  for  defendant. 


492  SOUTH   CAROLINA   EQUITY   REPORTS.  [*644 


James  Wardlaw,  for  himself  and  Others,  v.  The  Administrators  and 
heirs  of  Henry  Gray. 

A  wife  being  entitled  to  one-half  of  her  father's  estate,  proceedings  in  partition  were 
had,  and  a  tract  of  land  ordered  to  be  sold  by  the  Commissioner  on  a  credit  of  one 
and  two  years,  with  bond  and  mortgage  to  secure  the  purchase-money.  The  hus- 
band purchased,  and  instead  of  giving  bond  and  mortgage,  gave  his  receipt  to  the 
Commissioner  for  one-half  the  purchase-money,  his  wife's  share,  and  for  the  other 
half  as  guardian  of  the  other  distributees,  and  received  titles.  After  the  first, 
but  before  the  second  instalment  became  due,  the  husband  died,  and  the  land  was 
sold  by  order  of  this  Court,  as  his  property,  on  a  bill  to  apportion  his  assets.  On 
Ihe  widow's  presenting  her  claim  for  her  share  of  the  sale  of  the  land,  it  was  held 
that  she  was  entitled  to  payment  thereof;  and  to  the  benefit  of  the  security  of  the 
mortgage  which  should  have  been  given,  or  not  being  given,  that  the  Act  of  the 
Legislature  in  such  cases  gave  one.  [*644] 

Guardian  settled  with  his  ward  while  an  infant,  and  took  a  receipt  in  full  and  gave 
his  note  payable  at  a  future  time  for  the  balance  due,  and  a  payment  was  made 
on  it  after  the  ward  came  of  age.  After  the  death  of  the  guardian  on  the  claim 
of  the  ward  to  have  the  balance  due  on  the  note  rank  as  a  specialty  demand 
under  the  guardianship  bond  :  Held,  that  the  note  was  not  payment  of  the  preceding 
demand ;  its  only  effect  being  to  postpone  the  time  of  payment ;  and  although  the 
postponement  might  discharge  his  securities,  it  still  left  the  guardian  liable  on  the 
bond.  [*649] 

Payment  by  the  Commissioner  to  the  husband  of  his  wife's  distributive  share  of  an 
estate,  without  the  order  of  the  Court  is  wrongful  ;  and  is  not  such  a  reduction 
into  possession  by  the  husband,  as  that  the  marital  rights  attach.  [*051] 

Where  the  husband  as  administrator  has  wasted  his  wife's  chooses,  this  is  a  sufl5- 
cient  reduction  into  possession  ;  but  if  the  notes  or  bonds  which  he  took  as 
administrator  are  forthcoming,  the  wife's  right  still  exists.  [*G53] 

.   Abbeville,  June  Term,  1836. 

Bill  to  apportion  assets,  &c.  Report  made  of  demands  against  H. 
Gray's  estate,  arranged  in  the  order  of  priority  ;  and  exceptions  thereto 
filed. 

This  case  was  taken  up  for  the  special  purpose  of  considering  so  much 
of  the  Commissioner's  report  as  is  covered  by  the  1st,  2d,  3d,  and  5th 
exceptions  of  the  administrators  of  Henry  Gray ;  the  rest  of  the  report 
being  still  before  the  Commissioner. 

Johnston,  Chancellor.  1.  Of  the  four  exceptions  which  have  been 
argued,  the  first  depends  on  the  following  facts  : 

Henry  Gray's  wife,  who  was  a  daughter  of  the  late  Dr.  Flanagan  of 
Newberry,  being  entitled  as  a  distributee  to  one-half  of  her  deceased  father's 
estate,  proceedings  in  partition  between  the  distributees  were  instituted 
in  the  Court  of  Equity  for  Newberry  district,  where  the  estate  lay,  which 
resulted  in  a  decretal  order  that  the  Commissioner  of  that  Court  should 
sell  for  partition,  a  tract  of  laud  lying  ou  the  Enoree,  called  the  Mill 
Tract,  part  of  the  real  estate,  on  a  credit  of  one  and  two  years,  with 
interest  from  the  day  of  sale,  taking  bond  with  surety  and  a  mortgage  of 
*6451  ^^^  ^^"^^  to  secure  the  purchase-money.  Under  this  order,  the  *Com- 
-J  missioner  sold  the  land  to  Henry  Gray  on  the  5th  of  October, 
1829,  and  without  receiving  either  the  money  or  bond  and  mortgage  to 
secure  it,  executed  titles  to  Mr.  Gray,  the  17th  of  November  following, 
upon  the  following  arrangement : 


*64:5'\  COLUMBIA,  MAT,   1837.  403 

Mr.  Gray  gave  liira  a  receipt  for  one-half  the  ])urchase-moncy  as  his 
wife's  share  ;  and  a  similar  receipt  for  the  other  half,  as  the  share  of  the 
other  distributees,  for  whom  he  (Grray)  was  guardian  or  administrator. 

On  the  5th  of  April,  1831,  (after  the  first,  but  before  the  second  in- 
stalment would  have  fallen  due,)  Mr.  Gray  died,  leaving  his  wife  living. 

By  an  order  in  the  present  suit,  the  same  land  was  sold  since  Mr. 
Gray's  death,  as  parcel  of  his  estate ;  and  the  avails  are  in  Court  to  await 
claims  against  his  estate. 

»  His  widow  presents  a  claim  for  her  share  of  the  sale  made  to  her  hus- 
band ;  signifying  at  the  same  time,  that  if  it  is  sustained,  she  will  accept 
in  satisfaction  a  moiety  of  the  last  sale,  being  an  inferior  amount. 

The  Commissioner  has  sustained  her  claim ;  and  the  first  exception  is 
an  appeal  from  his  decision. 

I  am  not  entirely  satisfied  with  the  conclusion  to  which  I  have  been 
conducted  by  the  very  imperfect  examination  which  my  short  time  has 
allowed  me  to  give  this  very  difficult  matter.     But  my  view  is  this  : 

A  married  woman  cannot  be  deprived  of  her  inheritance  in  land  but 
by  deed  strictly  conforming  to  the  Act  of  Assembly,  or  by  an  exact  per- 
formance of  such  conditions  as  the  Court  may  impose.  Mrs.  Gray  was 
entitled  to  her  land,  or  the  substitute  for  it,  which  the  Court  ordered,  as 
the  only  condition  upon  which  she  should  be  deprived  of  it ;  and  she  was 
entitled  to  have  that  substitute  placed  in  the  situation  in  which  the  Court 
ordered  it  to  be  placed  ;  and  to  have  all  the  benefits  incident  to  its  being 
placed  in  that  situation.  For  it  must  be  considered  that  the  hu^oand 
had  no  power  to  sell  the  land  ;  and  in  order  to  have  it  sold  was  obliged 
to  resort  to  the  Court,  and  was  a  party  to  an  order  which  placed  the 
purchase-money  in  the  custody  of  the  Court,  not  in  his.  The  fund  (or 
the  securities  for  it,  which  is  the  same  thing,)  was  therefore  in  Court,  at 
the  instance  of  Mr.  Gray,  in  trust  for  his  wife;  and  he  could  not  obtain 
possession  of  it  without  the  order  of  the  Court — an  order  which  would 
not  have  been  made  without  provision  for  *the  wife,  unless  by  her  r*/' ^/^ 
consent.  To  all  these  advantages,  Mrs.  Gray  was  entitled,  as  ^ 
terms  on  which  the  land  was  sold. 

If  bond  had  been  givea  for  the  wife's  share  of  the  land  as  required  by 
the  order  of  sale,  and  the  bond  had  neither  been  paid  off  nor  assigned  to 
the  husband,  it  would  have  survived  to  the  wife.  If  it  was  paid  off  by 
the  husband,  he  could  not  draw  the  money  (there  being  no  order  for  the 
distribution)  without  applying  to  the  Court ;  and  then  the  Court  might 
have  provided  for  the  wife  out  of  it.  If  it  was  not  paid  off,  the  Commis- 
sioner could  not  assign  it  to  him  without  permission  :  to  say  otherwise, 
would  be  to  assert  that  an  officer  of  the  Court  may  supersede  the  Court 
itself  in  the  exercise  of  the  trust  delegated  to  it  in  behalf  of  femes  covert. 

It  is  admitted  that  if  Mr.  Gray  could,  without  the  aid  of  the  Court,  or 
by  operation  of  law  have  got  the  money,  his  wife's  right  of  survivorship 
is  gone  ;  and  it  has  been  argued,  that  if  he  had  given  bond,  he  would 
eo  instanfi,  have  become  both  debtor  and  creditor ;  and  so  (on  the  au- 
thority of  the  cases  following  Wankford  v.  Wankford,  1  Salk.  299,  3  lb. 
262,  2  Bail.  60,  1  Hill  Ch.  Rep.  423,)  have  been  rightfully  disclrarged  of 
the  bond,  and  put  in  possession  of  the  money  secured  by  it.  But  if  he 
had  given  bond,  he  would  not  have  been  indebted  to  himself,  but  to  the 
Court  through  its  Commissioner,  interposing  as  a  trustee  for  his 'wife: 


494  SOUTH   CAROLINA    EQUITY    REPORTS.  [*646 

nor  could  he  claim  payment  unconditionally — which  is,  I  apprehend,  the 
ground  upon  which  the  law  remits  money  to  a  debtor's  pocket.  He 
must  be  a  debtor,  or  a  creditor  with  an  unconditional  right  to  receive. 

In  these  observations  it  is  not  intended  to  assert  that  a  Commisssoner 
may  not,  without  leave,  as  is  every  day's  practice,  pay  out  money  to  one 
unconditionally  entitled  to  it,  as  for  instance,  to  one  entitled  in  his  own 
right,  or  as  guardian,  or  as  administrator;  but  merely  to  decide  that 
wdien  the  payment  would  deprive  the  Court  of  functions  with  which  it 
is  invested  for  the  benefit  of  parties  before  it,  and  who  also  have  a  right 
to  claim  the  exercise  of  those  functions,  and  would  be  denied  this  right  by 
the  payment,  the  payment  is  unwarranted. 

Again,  a  Commissioner,  like  any  other  agent  to  sell,  has  no  other  au- 
thority than  that  contained  in  the  order  under  which  he  acts  ;  and  cannot, 
without  violation  of  duty,  convey  but  upon  a  compliance  with  the  con- 
dition set  out  in  the  order  ;  nor  can  a  purchaser  take  a  conveyance  without 
*fi^71  complying  with  the  terms  of  sale  *contained  in  the  vendor's 
-•  authority,  into  with  he  is  bound  to  look.  A  conveyance  made 
without  compliance  with  the  terms  of  sale,  must  be  set  aside  at  the  in- 
stance of  any  person  interested. 

Here  the  conveyance  was  upon  no  consideration. 

Mr.  Gray  could  not  in  the  face  of  the  terms  of  sale,  which  were  notice 
to  him  not  only  as  party  but  as  a  purchaser,  take  a  benefit  to  himself  at 
the  expense  of  his  wife.  He  could  not,  after  invoking  this  tribunal  to  aid 
him  in  disposing  of  his  wife's  land,  and  after  placing  the  fund  under  his 
control  with  power  to  provide  for  her  out  of  it,  defeat  her  rights  and 
frustrate  the  power  of  the  Court  for  their  protection  by  refusing  to  pay 
the  money  into  Court,  or  taking  it  into  his  own  hands,  under  an  assump- 
tion that  it  need  not  be  paid  in,  which  is  the  same  thing. 

If  the  money  had  been  paid  to  the  Commissioner,  the  payment  of  it  to 
Mr.  Gray  would  have  been  bad  :  in  that  case  the  Commissioner  alone 
might  have  been  liable  to  Mrs.  Gray.  As  it  is,  there  was  no  payment  to 
the  Commissioner  ;  in  fact  the  purchaser  did  not  pay  for  the  land.  The 
owner  of  the  land,  Mrs.  Gray,  is  entitled  to  payment,  and  to  the  benefit 
of  the  bond  which  should  have  been  given,  and  to  the  security  of  the 
mortgage  which  was  ordered,  and  which  the  Act  of  Assembly  would  have 
set  up  if  none  had  been  ordered. 

The  first  exception  is  overruled. 

2.  I  feel  as  great  difficulty  about  the  second  exceptien  as  about  the 
first.     This  exception  depends  on  the  following  facts: 

Mr.  Gray  became  the  administrator  of  his  wife's  deceased  father ;  he 
was  also  the  administrator  or  guardian  of  all  his  wife's  co-distributees  iu 
that  estate. 

In  this  situation,  under  an  order  of  the  Ordinary,  he  sold  bis  father-in- 
law's  personalty,  and  took  notes  for  the  purchase-money.  He  died 
without  ever  having  had  a  partition  of  the  estate  ;  the  whole  of  which 
belonged  to  the  distributees,  there  being  no  debts  against  it.  Since  his 
death,  administration  de  bonis  non  on  his  intestate's  estate  has  been  taken 
out  by  Mr.  Harrington,  to  whom  the  administrators  of  Mr.  Gray  have 
accounted  for  the  shares  of  Mrs.  Gray's  co-distributees,  but  they  decline 
to  account  to  him  for  Mrs.  Gray's  share,  contending  that  Mr.  Gray  had 
reduced  that  as  husband. 

i 


*647]  COLUMBIA,  MAY,  1837.  495 

The  Commissioner  has  allowed  the  claim  of  the  administrator  de  bonis 
non  for  Mrs.  Gray's  share  (for  the  payment  of  which  there   *^re  (-:)«/.  io 
assets  belonging  to  Mr.  Gray's  estate)  and  the  second  exception  L 
eontends  that  the  allowance  was  improperly  made. 

If  my  opinion,  in  Spann  v.  Stewart,  1  Hill  Ch.  326,  had  been  re- 
ported,(a)  I  should  have  referred  to  it  as  my  opinion  on  this  point.     As 

*  Spann  vs.  Stewart,  (1  Hill's  Ch.  Rep.  326.)    The  decree  of  the  Chancellor,  so  far 
as  relates  to  this  point,  is  here-with  published : 

[What  constitutes  a  reduction  into  possession  of  the  wife's  choses  in  action,  by  a 
husband  administrator.     Per.  Ch.  Johnston.] 

Johnston,  Chancellor.  The  third  position  is,  that  so  far  as  Dr.  Wright  reduced 
his  wife's  share  into  possession,  the  plaintiff  is  entitled  to  a  diminution  of  his  liabil- 
ity— (unless,  I  suppose;  the  amount  reduced  exceeded  her  share,) — and  that  his 
conversion  of  the  assets  into  cash  amounted  to  such  reduction. 

The  first  branch  of  the  position  will  not  be  controverted.  The  latter  is  question- 
able. 

There  is  no  allegation  in  the  bill,  that  Mrs.  Screven's  estate  owes  no  debt ;  so 
that  the  decision  in  the  case  of  Neil  &  Marsh,  from  Edgefield,  does  not  apply. 

The  earlier  cases  are  all,  except  one,  cases  in  which  the  specific  chattels  which 
came  to  the  husband's  hands  during  the  marriage,  remained  unchanged  at  the  wife's 
death.  It  was  scarcely  contended  in  any  of  them,  that  the  husband's  possession 
was  a  reduction.  Spights  vs.  Meggs,  2  Brev.  MS.  2;>8 ;  2  Dess.  Rp.  138,  N;  Stur- 
gener  vs.  Hannah  2  N.  &  M'C,  147 ;  Bryne  vs.  Stewart,  3  Dess.  135  ;  Elmes  vs. 
Hughs,  lb.  155;  gunch  rs.  Hurst,  lb.  273.  The  only  question  of  consequence  was, 
whether  he  was  entitled  to  administer  to  the  wife  without  account,  under  the  statutes 
22  and  23  C.  2,  and  29  C.  2,  or  whether  this  right  had  been  taken  away  by  the  Act 
of  1791.  It  was  held  that  there  was  no  reduction,  and  that  his  right  under  the 
statutes  of  Charles  was  taken  away  by  our  act. 

In  one  of  the  cases,  the  husband  never  had  possession  during  the  coverture  ;  so 
that  that  solely  depended  on  the  question  whether  the  statutes  of  Charles  were  of 
force. 

There  are  some  stray  expressions  in  those  cases,  on  which  I  may  say  something 
hereafter. 

Whether  a  husband,  who  if  also  administrator,  has  effected  a  reduction,  depends,  I 
conceive,  on  this  :  Has  he,  by  discharging,  or  by  throwing  off  his  trust,  freed  him- 
self from  accountability  under  it,  for  the  property  in  question?  Has  he  rendered  the 
property  no  longer  trust-property  ?  Then  he  holds  it  in  his  own  right. 

If  he  has  openly  denied  his  trust-character  and  openly  evinced  an  adverse  holding 
and  the  act  of  limitations  has  barred  the  cestui  que  trusts  ;  he  holds  the  property  as 
his  own.  If  he  has  ended  his  trust  by  discharging  it,  what  he  has  left,  is  divested 
of  a  trust  character,  and  is  held  as  his  own. 

But  while  ever  he  is  liable  to  execute  a  trust  out  of  the  property,  he  has  not  reduced 
it,  but  holds  as  trustee,  whatever  the  form  of  that  property  may  be. 

A  bare  change  of  the  property  cannot  be  a  reduction  ;  for,  then,  if  he  exchanges 
slaves  for  other  slaves,  these  last  would  not  be  liable  to  partition.  Can  it  make  any 
difference  if  the  exchange  is  for  money  ? 

In  Byrne  &  Stewart,  the  Court  say  "The  marital  rights  cannot  give  him  (the 
husband,)  the  property,  because  it  was  not  reduced  to  possession  ;  nor  could  it  be, 
/or  the  sale  did  not  take  place  till  her  {the  wife's,  death."  This  referred  to  a  sale  by  a 
different  person,  in  whose  hands  the  property  was.  If  it  be  inferred  from  this 
expression  that  a  sale  is  a  reduction,  it  appears  to  me  the  inference  is  not  law  ;  for, 
then,  every  sale  bj'  an  administrator  would  amount  to  a  conversion,  and  the  begin- 
ning of  an  adverse  holding  of  the  avails ;  and  then  four  years  would  bar  the  distribu- 
tees. 

If  an  exchange  of  chattels  for  money  divests  the  trust,  it  cannot  be  merely  by 
virtue  of  its  being  an  exchange;  for,  then,  any  exchange,  even  for  other  chattels, 
would  divest  it. 


496  SOUTH    CAROLINA   EQUITY   REPORTS.  [*648 

it  is,  I  can  only  say  that  my  opinion  has  undergone  no  change  since ^  I 
delivered  it :  and  that  opinion  is,  that  when  funds  come  into  an  adminis- 
trator's hands  as  administrator,  he  is  still  chargeable  with  them  as 
administrator,  until  he  does  some  act  indicating  an  intention  to  throw  off 
his  trust  character,  Here  the  only  act  done  by  Mr.  Gray  was  to  sell  the 
property  and  secure  the  price  by  notes  :  an  act  which  he  was  bound  to  do 
by  the  order  of  the  Ordinary,  and  which  he  could  do  only  as  adminis- 
trator. 

My  difficulty  has  been  about  the  extent  to  which  this  opinion  was 
modified  by  the  appeal  decree  in  the  case  of  Spann  v.  Stewart.  But 
when  I  consider  the  current  of  authorities  before  that  case,  and  the  lan- 
guage of  the  Court  in  Boozer  v.  Wallace,  1  Hill.  Ch.  Rep.  393,  since 
decided,  and  compare  them  with  the  opinion  in  Spann  v.  Stewart,  I  am 
rather  under  the  impression  that  the  Court  intended  to  modify  the  doc- 
trine I  have  laid  down  only  in  the  single  case  where  a  husband,  adminis- 
trator, has  wasted  his  wife's  share. 

^       -.       *Here  there  are  assets  to  answer  for  those  received  by  Mr.  Gray, 
-I  as  administrator;  and  if  I  have  correctly  interpreted  the  decision 
in  Spann  v.  Stewart,  it  cannot  apply  to  destroy  the  wife's  right. 

The  second  exception  is  overruled. 

3.  The  third  exception  was  not  insisted  on  by  any  party,  and  is  over- 
ruled. 

Can  it  be  on  account  of  the  character  of  the  thing  exchanged, for  ?  because  it  is 
money?  Then  it  would  follow  that  if  an  intestate  left  nothing  but  money,  the 
administrator  would  not  be  accountable. 

It  has  always  been  held,  however,  that  every  trustee  is  liable,  as  such,  for  all  the 
profits  made  by  him,  by  trading  with  the  assets.  If  this  principle  be  not  abandoned, 
no  change  of  form  will  save  the  fund  acquired  from  accountability. 

The  Court,  in  Elms  v.  Hughes,  3  Dess.  160  ;  speaking  of  what  constitutes  a 
reduction,  say  "  whenever  a  suit  is  necessary  to  give  effect  to  a  right,  this  is  a  right 
in  action."  This  is  a  negative  test  of  reduction  ;  but  I  suppose  was  not  intended 
as  the  only  test.     If  it  was,  however,  an  accounting  is  a  judicial  proceeding. 

An  accounting  is  as  much  necessary,  where  the  wife's  distributive  share  consists 
in  money,  as  a  partition  is  where  it  consists  in  slaves.  The  purpose  in  each  case,  is 
to  ascertain  and  declare  the  wife's  share,  and  separate  it  from  that  of  others. 
Without  an  accounting,  it  is  impossible  to  ascertain  it ;  since  either  she  or  some 
others  of  the  distributees  may  have  been  advanced,  either  partially  or  beyond  their 
shares,  or  settlements  may  have  been  made  on  them  by  the  intestate. 

The  character  of  the  holding  may  depend  on  the  intention.  Shall  a  man  be  con- 
sidered as  holding  for  himself,  who  declares  that  he  holds  as  trustee  ?  Shall  he  be 
so  considered,  unless  he  has  declared,  and  that  openly  before  creditors  and  distrib- 
utees, so  as  to  put  them  on  their  remedies,  that  he  intends  to  hold  for  himself?  It 
is  very  little  to  require  of  a  husband  who  wishes  to  pocket  his  wife's  property,  that 
he  shall  account  on  the  estate  first. 

I  see  no  evidence  of  an  intention  in  Dr.  Wright  to  reduce  his  wife's  share.  Does 
it  consist  in  receiving  the  dividends  ?  Was  he  not  bound  to  collect  the  debts  ?  Does 
it  consist  in  the  sales  ?  Is  there  evidence  that  he  was  not  acting  under  orders  from 
the  Ordinary? 

The  amount  of  the  matter  is,  that  he  has  not  accounted.  And  has  he,  therefore, 
ceased  to  be  accountable  ? 

We  have  a  case  on  the  very  point.  In  Phaelon  &  Houseal,  2  M'C.  Ch.  Rep.  423 ; 
the  defendant  received  during  his  marriage,  upwards  of  three  thousand  dollars  in 
money  belonging  to  the  intestate,  which  he  held  till  1816,  wben  his  wife  died,  and 
thence  to  1821,  supposing  all  the  time  that  she  was  the  sole  distributee.  In  that 
year,  other  distributees  appeared  and  demanded  partition  with  him  ;  and  it  was 
decreed. 


*649]  COLUMBIA,  MAY,  1837.  497 

5.  The  fifth  exception  objects  to  the  Comrajssiouer's  allowance  of 
Philip  Cromer's  claim  as  a  specialty  demand. 

Mr.  Gray,  who  was  the  guardian  of  Philip  Cromer,  came  to  a  settle- 
ment with  his  ward  on  the  7th  of  January,  1830 — the  ward  being  still 
an  infant — (being  born  on  the  20th  of  August,  1809,) — when  the  balance 
due  the  ward  appearing  to  be  about  $1,300,  he  paid  him  part  in  cash, 
and  gave  him  his  negotiable  note  with  some  time  to  run  for  the  residue, 
and  the  ward  gave  him  a  receipt  in  full.  Mr.  Gray  lived  several  months 
after  the  ward  came  of  age,  and  paid  hirn  a  $100  bill  on  it;  but  whether 
this  payment  was  made  before  or  after  tjie  ward's  majority,  is  uncertain, 
there  being  no  date  to  the  credit  endorsed  on  the  note.  After  Mr.  Gray's 
death,  and  after  the  ward  attained  age,  Mr.  Gray's  administrator  made  a 
I  small  payment  *which  is  credited  on  the  note.  It  is  also  in  proof,  r;jt/.p,j 
that  upon  being  called  on  by  the  administrator,  after  he  came  of  age,  ^ 
the  ward  admitted  that  he  was  then  of  age,  and  was  satisfied  with  the 
settlement  he  had  made.  The  note  is  still  in  possession  of  the  ward, 
and  was  produced  on  the  investigation  of  his  claim,  which  claim  is  to  have 
the  balance  due  on  the  note  charged  on  the  guardianship  bond  upon 
giving  up  the  note. 

It  appears  to  me  that  the  infancy  of  the  claimant  at  the  time  he  gave 
the  receipt  and  took  the  note,  is  an  immaterial  circumstance  ;  I  think  if 
he  had  done  the  same  thing  after  coming  of  age,  he  still  would  be  enti- 
tled to  the  relief  he  seeks. 

The  note  in  question  was  part  of  the  consideration  of  the  receipt.  It 
has  been  repeatedly  held  that  a  note  is  not  payment  of  a  preceding 
demand,  unless  the  note  itself  be  paid.  The  only  effect  of  taking  the  new 
security  is  to  conform  the  time  for  payment  of  the  preceding  demand 
to  that  fixed  in  the  new.  The  taking  of  this  note  postponed  the  time  for 
paying  the  bond  until  the  note  fell  due.  The  postponement  might  dis- 
charge Mr.  Gray's  securities,  but  left  him  liable  on  the  bond  after  the 
note  came  to  maturity,  *if  the  note  be  produced  and  given  up  to 


repel  the  presumption  that  it  has  been  paid  off. 


[*651 


The  case  of  Tobey  v.  Barber,  (5  J.  R.  68  :  1  M'C.  449,)  which  ap- 
pears to  be  well  supported  by  preceding  cases,  and  is  expressly  relied  on 
in  our  own  case  of  Barelli  v.  Brown,  is,  I  think,  decisive  of  this  excep- 
tion. 

The  fifth  exception  is  overruled. 

The  administrators  of  Henry  Gray  appeal  from  this  decree,  and  will 
endeavor  to  sustain  the  first  and  second  and  fifth  exceptions  above  men- 
tioned. To  the  foregoing  statement,  they  will,  as  to  the  second  excep- 
tion, add,  that  although  H.  Gray's  estate  is  amply  sufficient  to  meet  these 
demands  of  his  wife  if  they  stood  alone,  yet  that  it  is  unable  to  pay  more 
than  perhaps  one-third  of  his  debts  ;  and  that  none  of  the  notes  taken 
by  Henry  Gray,  as  administrator,  at  the  sale  of  Reuben  Flanagan's 
estate,  remained  in  the  hands  of  Henry  Gray  unpaid  at  the  time  of  his 
death,  so  far  as  any  of  the  settlements  had  between  the  administrators  of 
Henry  Gray,  and  the  administrator  de  bonis  non  of  Reuben  Flanagan, 
or  any  of  the  papers  which  came  to  the  hands  of  the  administrators  of 
Henry  Gray,  show. 

WarcUaiv  and  Perrin,  for  appellants. 

Burt,  contra. 


■498  SOUTH   CAROLINA    EQUITY    REPORTS.  [*651 

Johnston,  Chancellor.  In  this  case,  it  is  the  opinion  of  the  Court, 
that  the  circuit  decree  upon  the  first  exception  was  correct. 

In  offering  any  thing  further  in  support  of  that  decision,  it  might  be 
sufficient  to  refer  to  the  opinion  delivered  by  Mr.  Justice  Butler,  at  the 
last  December  Term  of  the  late  Court  of  Appeals,  in  the  case  of  Pitts  v. 
Wicker ;  in  which  every  judge  present,  eight  in  number,  including  every 
chancellor,  concurred. 

The  argument  on  the  present  occasion  is,  that  the  circuit  decree  is  in- 
consistent with  the  principles  upon  which  the  Chancellor  who  pronounced 
it,  professes  to  place  it.  That  the  Chancellor  evidently  acted  upon  the 
maxim  that  equity  will  regard  that  as  done,  which  should  have  been  done. 
But  that  admitting  this  principle  to  be  true,  it  was  aot  correctly  applied 
to  the  case  :  for  that  although  in  virtue  of  the  maxim,  it  might  be  cor- 
rect to  assume  that  a  bond  and  mortgage  had  been  executed  by  Mr. 
^  -.  Gray  ;  yet  that  he  *had  a  right  to  pay  the  money  even  before  it 
J  was  due :  that  if  he  had  paid  the  money  to  the  Commissioner,  he 
thereby  extinguished  the  wife's  interest  in  the  bond.  That  the  fund  thus 
paid  in,  became  thenceforth  the  exclusive  legal  property  of  the  husband ; 
which  he  was  under  no  necessity  to  ask  the  aid  of  the  Court  to  obtain. 

Passing  by  the  obvious  remark  that  whatever  right  Mr.  Gray  might 
have  to  make  payment  in  anticipation  he  never  in  fact  made  any  pay- 
ment, let  us  suppose  that  he  did  pay  the  purchase-money  to  the  Com- 
missioner. The  question  then  is,  had  he  a  legal  unqualified  right  to  the 
money  thus  paid  in. 

The  case  of  Hood  v.  Archer,  cited  by  Mr.  Justice  Butler,  is  in  point, 
to  show  that  he  had  no  such  right.  In  that  case,  the  wife's  inheritance 
was  sold  by  the  sheriff.  The  purchaser  paid  over  the  price  to  the 
sheriff.  The  wife  then  died  :  and  the  question  was,  whether  the  money 
belonged  to  the  husband,  by  virtue  of  his  marital  rights,  or  whether  the 
right  to  it  did  not  remain  iu  the  wife,  so  as  to  vest  in  her  administrator. 
The  Court  held  that  it  belonged  to  the  administrator  of  the  wife. 

If  Mr.  Gray  had  paid  the  money  to  the  Commissioner,  had  he  such  a 
legal  right  to  it  that  he  could  have  recovered  it  at  law  from  that  officer  ? 
Money  in  the  hands  of  the  Commissioner  is  in  the  hands  of  the  Court 
itself.  No  action  can  be  maintained  against  him  in  another  tribunal,  to 
deprive  him  of  it.  The  comity  of  Courts  forbids  it.  The  application 
for  the  money  must  be  to  the  tribunal  in  whose  custody  it  is.  This  prin- 
ciple, the  correctness  and  importance  of  which  will  be  at  once  perceived, 
was  decided  a  few  years  ago  in  Charleston,  in  a  case  (I  believe  the  style 
of  it  was  Bovvden  v.  Hutsell)  carried  up  from  a  circuit  decision  of  Chan- 
cellor Harper. 

If,  then,  the  money  when  paid  in,  still  belonged  to  Mrs.  Gray,  and  her 
husband  could  not  obtain  it  but  on  application  to  this  Court,  the  ques- 
tion is,  what  order  would  the  Court  have  made  on  such  application  ? 

Clancy  says,  "  If  the  wife's  fortune  be  within  the  reach  of  the  Court," 
"  Equity  will  not  suffer  it  to  be  removed  out  of  its  jurisdiction  until  an 
adequate  provision  be  made  for  her,  unless  she  has  been  already  suffi- 
ciently provided  for;  or  that,  on  her  j:>ersonaZ  examination,  she  ivaives 
*6531  ^^^  benefit  of  this  protection." — (Clancy  on  Married  Women, 
188.) — The  same  author  again  and  again  speaks  *of  this  doctrine 


*653]  COLUMBIA,  MAT,  1837.  499 

as  "a  settled  rule  of  our  Courts  of  Equity,"  and  refers  to  numerous 
authorities  which  fully  sustain  him. 

So  far  does  this  doctrine  extend,  that  although  the  wife's  trustee  may, 
if  he  thinks  fit,  deliver  her  property  to  the  husband  ;  yet  if  a  bill  be  once 
filed,  whereby  this  Court  obtains  a  control,  the  trustee  will  no  longer  be 
at  liberty  to  do  so  ;  and  if  he  pay  over  any  of  her  money  after  such 
suit  begun,  the  Court  will  hold  it  a  payment  by  wrong,  and  set  it  aside, 
(M'Caulay  v.  Phillips,  4  Yes.  18.) 

The  argument  then,  which  maintains  that  the  Court  will  approve  the 
act  of  the  Commissioner  in  paying  the  money  to  Mr.  Gray,  on  the  ground 
that  upon  application  it  would  have  ordered  him  to  pay  it,  seems  to  be 
unsupported  by  authority.  The  Court  would  never  have  so  ordered, 
unless  by  the  wife's  consent. 

And  when  we  consider  that  the  Court  would  hold  a  payment  made  by 
a  trustee  after  suit  brought,  to  be  wrongful  for  the  want  of  the  wife's 
consent,  or  the  order  of  the  tribunal :  would  it  not  be  plainly  absvird  to 
suppose  that  when  the  Court  is  itself  the  trustee,  it  would  depart  from 
its  own  rule  ;  or  that  it  would  sanction  that  in  its  own  officer  which  it 
would  condemn  in  every  one  else  who  happens  to  come  under  its  control  ? 

The  opinion  of  the  Court  upon  the  second  exception  is  different. 

It  appears  by  the  additional  facts  stated  in  the  brief,  that  Mr.  Gray 
did  not  only  convert  the  assets,  but  that  he  wasted  them,  so  as  to  bring 
himself  within  the  rule  in  Spann  v.  Stewart. 

If  the  notes  or  other  securities  which  he  took  for  the  property  which 
he  sold  as  administrator,  were  forthcoming,  or  could  be  poiuted  out,  I 
have  the  authority  of  all  my  brethren  for  saying  that  in  such  a  case  they 
would  consider  the  wife's  right  indubitable.  But  when  he  has  wasted 
the  assets,  the  majority  of  the  Court  is  of  opinion,  this  is  sufficient  evidence 
of  a  reduction  to  destroy  his  accountability  as  administrator. 

The  appeal  on  the  fifth  exception  has  been  abandoned. 

Let  the  circuit  decree  be  reformed  according  to  this  opinion. 

Chancellors  De  Saussure  and  Harper,  concurred. 


INDEX. 


[The  folios  in  this  Index  refer  to  the  *  folios.  The  syllabus  formerly  appeared  as  siilenotes,  which 
we  haTO  collected  and  placed  at  the  commencement  of  cases.  Therefore,  whim  the  Inde.>c  refers  to  a 
folio,  the  text  will  be  found  at  the  *  folio,  and  the  syllabus  at  the  beginning  of  the  case.] 


ACCOUNT. 

Mode  for  stating  accounts  against  trustees.     Jordan  v.  JIu?it, 145 

See  Evidence,  3,  4,  5.    Guardian  and  Ward,  8,  4.    Hire,  1,  2.    Interest, 
1,  2.     Partnership,  1.     Release.     Tenant  for  life,  2.     Waste,  1. 

ADMINISTRATORS. 

See  Execdtohs  and  Administrators. 

AGENT— ATTORNEY, 

Where  one,  by  power  of  attorney,  authorized  another  to  sell  and  convey  a  ship, 
and  the  attorney  sold  and  received  payment,  but  by  mistake  or  ignorance 
executed  the  bill  of  sale  in  his  own  name  instead  of  his  principal's,  in 
consequence  of  which  it  was  declared  void  at  law: — Held,  that  although 
th'e  bill  of  sale  could  not  operate  as  a  conveyance  at  law,  it  was  such  an 
agreement  as  a  Court  of  Equity  will  carry  into  effect  against  creditors  of 
the  vendor  who  had  subsequently  obtained  legal  liens.  Welsh  v.  Usher 
and  others, 168 

See  Commissioners,  1.  Evidence,  3,  4,  5.  Frauds,  Stat.  of.  Interest,  1. 
Limitations,  Stat,  of,  3.     Release.     Specific  Performance,  9. 

AMENDMENT. 

See  Decree,  1.     Pleading,  1. 

ANNUAL  BALANCES. 

See  Interest,  2. 

ANNUITY. 

A  bequest  in  these  words,  "it  is  my  will  that  the  sum  of  one  hundred  and 
fifty  dollars,  be  paid  out  of  the  profits,  or  moneys  arising  out  of  my  estate, 
to  my  son  J.  C,  as  a  maintenance  for  him,  for  and  during  his  natural  life 

and  no  longer,"  held  to  be  an  annuity,     raiterson  v.  Leith,  Ex' or 16 

See  Limitation  of  Estates,  1. 

ANSWER. 
See  Decree,  3.     Pleading,  2. 

APPOINTMENT. 

1.  A.  H.  having  provided  for  his  lawful  children,  and  having  several  illegiti- 
mate children,  and  about  to  marry  their  mother,  in  order  to  provide  for 
his  natural  children,  and  his  intended  wife,  and  the  issue  of  the  marriage, 
executed  a  deed  of  all  his  real  estate  and  twenty-one  slaves,  in  trust  for 
himself  during  life,  and  at  his  death  one-fourth  part  thereof  for  his  natural 
children  in  fee  ;  one-third  of  the  remainder  to  the  use  of  his  intended  wife 
YOL     1.— 55 


502  INDEX. 

for  life,  and  then  to  the  children  of  their  marriage  in  fee  ;  and  the  other 
two-thii-ds  of  the  remainder  to  the  use  of  such  persons  as  his  intended 
■wife  shoukl  appoint,  reserving  to  himself  the  right  to  revoke  or  alter  such 
appointment,  and  in  default  of  appointment,  to  his  said  -wife,  her  heirs, 
executors  and  assigns.  The  marriage  took  place,  and  A.  H.  acquired 
some  property  after  the  execution  of  this  deed.  By  his  will,  afterwards 
executed,  he  referred  to  and  confirmed  the  settlement,  and  by  a  general 
residuary  clause,  gave  all  the  rest  of  his  estate  to  the  children  of  hip  last 
niarriSge,  and  then  declares  "it  is  his  wish"  that  his  wife  and  children 
remain  on  the  plantation  until  another  place  be  provided,  and  that  Ms  mills 
be  rented  and  his  negroes  hired  out,  &c.,  and  other  dispositions  inconsis- 
tent with  the  deed.  The  wife  made  no  appointment.  Held:  1.  That  the 
deed  did  not  authorize  A.  H.  to  change  its  uses,  but  merely  to  control  his 
wife's  appointments ;  2.  That  the  will  was  not  intended,  and  could  not 
operate,  as  a  revocation  of  the  uses  of  the  deed,  and  as  a  declaration  to 
other  uses  ;  and  3.  That  on  the  death  of  A.  H  his  wife  took  an  absolute 
estate  in  the  remaining  two-thirds  described  in  the  deed.     Brunson  and 

"^Vife  V.  Hunter's  Administrator  and  heirs, '-••••   484 

2.  Where  one  conveyed  in  trust,  reserving  a  life  estate  to  himself,  a  portion 
of  his  estate  to  such  persons  as  his  wife  should  appoint,  and  in  default  of 
appointment  to  her  heirs  and  assigns,  on  the  death  of  the  husband  the 

wife  takes  an  absolute  estate.     lb 490 

See  Husband  and  Wife,  9,  10.     Powek. 

ASSETS. 

Lands  in  the  hands  of  the  heir  or  devisee,  are  liable  to  the  debts  of  the 
deceased,  whether  the  executor  has  assets  or  not.  Under  the  stat.  3  &  4 
W.  &  M.  the  heir  and  devisee  may  be  sued  jointly,  and  the  executor  cannbt 
be  joined  at  law.  "I'he  heir  or  devisee,  however,  has  an  equity  against  the 
executor  to  be  reimbursed  out  of  the  personal  assets:  and  when  the  creditor 
conies  into  equity  to  charge  the  real  estate,  he  must  make  the  executor  a 
party  to  prevent  circuity  of  action,  thereby  at  once  afibrdiug  the  heir  or 
devisee  relief;  but  where  there  is  no  executor  or  administrator  and  no 
personal  assets  in  the  state,  no  such  party  can  or  need  be  made.      Vernon 

^  Co.  v.  Valk  and  Wife 2G0 

See  Executors  and  Administkators,  7,  8,  22.     Legacy,  2,  3,  4. 

ASSIGNMENT. 

The  plaintiff  had  paid  one  hundred  dollars  to  the  testator  in  his  life  time,  in 
part  price  of  a  negro;  after  testator's  death,  six  out  of  eight  of  the  resi- 
duary legatees,  gave  their  bond  to  the  administrator  with  the  will  annexed 
relinquishing  their  interest  in  the  one  hundred  dollars,  and  authorizing  the 
payment  of  their  shares  therein  to  the  plaintiff: — Held,  that  the  bond  was 
an  assignment  of  their  interest  in  th'at  fund  to  the  plaintiff.  Sims  v. 
Sims,    adm'r 62 

See  Debtor  and  Creditor,  2,  3,  5,  G,  7.     Executors  and  Administra- 
tors, 23.     Husband  and  Wife,  1,  3.     Lien,  1. 

ATTACHMENT. 

1.  The  garnishee  dying  pending  the  proceedings,  a  judgment  entered  up  against 

him  alter  his  death  is  irregular,  and  may  be  set  aside  at  law :  and  if  the 
executors  appeared  and  consented  to  the  trial,  at  most  it  could  only  be 
regarded  as  a  judgment  against  them,  and  not  rank  as  a  judgment 
against  the  garnishee,  so  as  to  give  priority  over  other  creditors  who  had 
not  obtained  judgment  in  his  lifetime.  I'arker,  Ex'trix,  v.  Creditors  of  Parker,     38 

2.  By  the  Attachment  Act  things  capable  of  being  identified,  such  as  specific 

chattels  and  evidences  of  debts,  are  bound  by  the  levy  so  that  the  gar- 
nishee cannot  after  service  deliver  them  to  the  owner,  or  any  one  else, 
without  being  liable  for  their  value;  and  in  this  sense,  the  attachment 


30 


INDEX.  503 

is  said  to  have  a  lien  from  tlie  time  of  its  being  levied :  but,  in  the  case 
of  a  debt  due  by  the  garnishee  to  the  absent  debtor,  it  is  incapable  of 
being  identified  specifically  as  his  estate,  the  service  of  the  attachment 
creates  no  general  lien  on  the  estate  of  the  garnishee;  and  the  only  way 
the  money  so  due  can  be  bound  is,  that  by  the  service  of  the  attachment 
the  garnishee  is,  to  the  extent  of  his  debt,  made  the  debtor  of  the  plaintitf, 
but  no  lien  exists  against  him  until  judgment  is  actually  entered  against 
him.    lb 

See  Debtor  and  Creditor,  8. 

AUCTIONEER. 

See  Frauds,  Stat.  of. 

BOND, 

A  paper  with  blanks  as  for  a  penal  bond,  the  condition  only  filled  up  with  the 
sum  but  not  the  name  of  the  obligee,  dated,  and  signed  by  the  defendant, 
under  the  circumstances  of  the  case,  perfected  and  set  up  as  a  bond,  and 

payment  decreed.     Executors  of  Gray  v.  Humph 8 

See  Assignment.     Delivery,  1.     Fraudulent  Conveyance,  4. 

BOND  DEBT. 

1.  The  costs  of  a  judgment  on  an  administration  bond  against  the  surety  (or 

co-administratrix,)  who  was  subrogated  to  the  rights  of  the  creditor,  cannot 
rank  as  a  bond  debt.     Smithy.  Smith 112 

2.  Guardian  settled  with  his  ward  while  an  infant,  and  took  a  receipt  in  full 

and  gave  his  note  payable  at  a  future  time  for  the  balance  due,  and  a 
payment  was  made  on  it  after  the  ward  came  of  age.  After  the  death  of 
the  guardian  on  the  claim  of  the  ward  to  have  the  balance  due  on  the 
note  rank  as  a  specialty  demand  under  the  guardianship  bond :  Held, 
that  the  note  was  not  payment  of  the  preceding  demand ;  its  only  effect  being 
to  postpone  the  time  of  payjnent ;  and  although  the  postponement  might 
discharge  his  securities,  it  still  left  the  guardian  liable  on  the  bond. 
Wardlaw  v.  Administrators  and  Heirs  of  Gray 649 

CIVIL  LAW. 

The  civil  law  may  be  consulted  in  explanation  of  our  law,  but  not  as  authority. 

Fable  v.  Brown,  Ex' or SCO 

COMMISSIONER. 

The  Act  of  1824,  p.  21,  requiring  Masters  and  Commissioners  to  report  annually 
to  the  Court  "what  guardians  and  trustees  have  not  annually  made  their 
returns,"  and  "to  set  apart  certain  days  for  reference  of  such  accounts," 
&c.,  was  intended  to  protect  wards  and  cestui  que  trusts  whose  funds  were 
under  the  control  of  the  Court,  and  not  to  impose  duties  on  the  Commis- 
sioner which  would  be  impossible  or  useless  and  nugatory  :  And  therefore 
the  Commissioner  is  not  guilty  of  any  neglect  of  duty  in  not  reporting  to 
the  Court,  the  case  of  a  guardian  who  had  finally  settled  with  his  ward, 
and  that  fact  had  been  before  reported  to  the  Court ;  or  where  a  guardian 
was  dead,  and  his  death  had  been  previously  reported  ;  or  where  a  guardian 
had  removed  from  the  State,  and  which  had  been  before  reported.     Ex 

parte  3Iiller,  ComW 378 

See  Commissions,  3.     Husband  and  Wife,  28. 

COMMISSIONER'S  REPORT. 

The  Commissioner  having  in  his  report  on  the  sales  in  partition,  stated  that  he 
had  paid  over  her  share  to  a  distributee  who  was  of  full  age,  and  the  report 
confirmed  is  not  an  adjudication  which  will  concluda  plaintiff  as  to  the  fact 


504  INDEX. 

of  payment,  that  was  not  referred  to  the  Commissioner,  and  was  not  in 
issue.  And  the  confirmation  was  not  intended  to  establish  the  fact  of  pay- 
ment, but  to  approve  it  if  done.     3Iesservey  and  others  v.  Barelli 580 

See  Peactice,  1. 

COMMISSIONER'S  SALE. 

The  Commissioner  may,  under  the  order  of  the  Court,  make  sales  of  land  lying 

in  another  district.     Bank-v.  Trapier  and  others 25 

See  Comjiissioxee's  Repoet.     Guardian  and  Waed,  7.     Husband  and 
^ViFE,  20,  28. 

COMMISSIONERS. 

1.  A  private  agent  is  not  entitled  to  commissions  unless  by  contract.     Lever  v. 

Lever  —   166 

2.  Executors  and  administrators  are  not  entitled  to  two  and  a-half  per  cent,  in 

addition  to  ten  per  cent.,  for  making  interest.  By  the  Act  of  1789,  they 
are  not  allowed  ten  per  cent,  for  letting  out  to  interest  and  receiving  in 
again,  nor  ten  percent,  for  making  interesi,  but  two  and  a-half  for  letting 
out,  and  two  and  a-half  for  taking  in,  until  the  commissions  reach  ten  per 
centum,  which  is  the  maximum.     Mafsey,  Massey  and  others 495 

3.  For  investing  and  loaning  out  money  under  the  order  of  the  Court,  the 

Commissioner  is  not  entitled  to  commissions  for  extra  services,  but  is 
restricted  to  the  amount  allowed  him  by  law  in  his  character  of  Commis- 
sioner.    Bonay.  Davant 528 

4.  A  surviving  partner  winding  up  and  settling  the  alFairs  of  the  firm,  is  not 

entitled  to  commissions  unless  stipulated  for  by  contract.  The  Act  of 
1745,  (P.  L.  202-?>)  relates  only  to  trustees  who  have  the  managemnt  of 
the  estates  of  "  infants  or  minors."     Cooper  v.  Admr's  of  Reid 549 

CONSIDERATION. 

See  Deed,  2.     Deliteet,  1.     Estoppel,  1.     Feaudulent  Conveyance,  2. 
Husband  and  Wife,  11. 

CONTRIBUTION. 

1.  Contribution  by  legatees  to  a  child  born  after  the  execution  of  the  will  and 

before  the  testator's  death,  decreed.     Heath  v.  Heath  and  others 101 

2.  Contribution  among  volunteers  under  separate  conveyances,  refused.    Thomp- 

son and  Wife  V.  Murray  and  Wife 210 

'i.  Contribution  to  remove  a  general  lien  on  the  whole  property  will  not  be 
allowed  among  volunteers,  unless  there  was  an  inevitable  necessity  that 
part  of  the  property  should  pay  it:  the  necessity  cannot  exist  where  the 
donor  is  still  solvent,  for  it  seems  then  the  creditor  might  in  equity,  be 
forced  to  exhaust  the  donor's  estate  before  proceeding  against  the  property 

conveyed.     lb 213 

See  Subrogation.     AVill,  9. 

COSTS. 
See  Bond  Debt,  1.     Executors  and  Administrators,  29. 

COUNSEL  FEE. 

1.  On  a  bill  against  an  executor  to  account  for  his  administration,  he  will  not  be 
allowed  a  credit  in  making  up  the  accounts,  for  a  counsel  fee  paid  by  him 
in  the  case  for  litigating  questions  in  which  he  was  individually  interested 
and  which  were  decided  against  him ;  nor  does  it  vary  the  case  that  some 
of  the  credits  claimed  by  him,  were  contested  and  adjudged  in  his  favor. 
Sherman  v.  Angel,  ez'or 26 


INDEX.  505 

2.  'When  there  is  a  necessity  for  an  executor  or  administrator  to  come  into  a 
Court  of  Equity  to  obtain  its  judgment,  a  counsel  fee  paid  by  biui  will  be 
refunded  out  of  the  estate.     JJrt/son  v.  Xichols, 121 

DEBTOR  A^'D  CREDITOR. 

1.  The  common  law  prerogative  of  the  King,  to  be  paid  in  preference  to  all 

other  creditors,  does  not  apply  to  the  State.  The  riglit  of  the  State 
depends  in  this  respect  altogether  on  the  statute  law.  "^The  Act  of  17^«, 
prescribing  the  order  in  which  the  debts  of  a  deceased  person  shall  be 
paid,  gives  the  preference  to  the  State  only  where  the  intestate  is  imlcbted 
to  the  State  and  a  citizen  in  equal  degree;  and  therefore  a  junior  judgment 
in  favor  of  Commissioners  of  the  poor,  (conceding  it  to  be  a  debt  due  to 
the  public,)  is  not  entitled  to  be  paid  in  preference  to  senior  judgments  of 
other  creditors.     Keckle;/ y.  Kecklcy, 2oG 

2.  A  debtor  may  lawfully  assign  his  whole  estate  for  the  benefit  of  such  creditors 

as  shall  release  him.   .  Niolon  \.  Douglass  and  others, 443 

3.  A  debtor  executed  an  assignment  of  his  whole  estate  to  trustees,  in  trust  for 

the  benefit  (after  discharging  existing  liens)  of  all  such  creditors  as  should, 
within  six  months,  establish  their  demands,  accept  dividends  and  give 
releases  in  full ;  and  excluding  others  who  should  refuse  to  comply  with 
these  terms: — On  a  bill  by  a  creditor  who  refused  to  accept  to  set  aside 
the  deed  of  assignment  as  fraudulent  and  void,  it  was  held  to  be  valid,    lb.  444 

4.  A  failing  debtor  may  give  preferences  among  his  creditors,  and  it  seems 

impracticable  to  prevent  the  exercise  of  this  right.    The  subject  considered 

in  reference  to  a  bankrupt  system.     lb 446 

5.  In  all  the  cases  the  vice    lies   not  merelj-^  in    requiring  a  release,  but  in 

putting  the  assets  in  such  way  as  to  be  inaccessible  to  ordinary  process, 
and  then  establishing  such  control  over  them  in  the  grantor,  that  he  could 
at  his  pleasure  make  or  withhold  payment.     lb 453 

6.  Our  insolvent  debtor's  act  recognizes  the  right  of  a  debtor  to  assign  for  the 

benefit  of  releasing  creditors.     Jb 454 

7.  Bill  by  joint  owners  of  a  steamboat  against  another  joint  owner  and  his 

attaching  creditors,  the  joint  owner,  defendant,  having  been  the  agent  of 
the  company,  and  being  a  balance  due  from  him  to  the  comoanj',  on  which 
plaintiffs  claimed  a  lien  on  his  shares  :  — Held,  that  the  plaintiffs  as  creditors 
in  possession,  were    entitled  to  the  lien   in  preference    to  the    attaching 

creditors.     Seabrook  ■v.  Mose, 553 

See  Agext.     Attachment,  1.     Bond  Debt,  1,  2.     Decree,  4.     Fraudu-   . 
LENT  Conveyance.     Husband  and  Wife,  11,  12,  13,  14,  15.  10,  17, 
18,  19,  20,  25.     In.junction,  1.     Lien.     Marriage  Settlement,  3, 
4,  5,  11.     Parties,  1,  2.     Sheriff's  Sale,  2.     Waiver 

DECREE. 

1.  The  Court  will  exercise  the  right  of  correcting  errors  in  its  decrees  in  ex 

parte  cases  and  cases  by  consent,  so  long  as  they  remain  unexecuted:  and 
where,  on  a  bill  for  partition,  an  order  of  sale  was  granted  by  consent  of 
parties,  in  which  by  mistake,  a  slave  belonging  to  one  of  the  parties  and 
not  to  the  estate,  was  included  in  the  property  to  be  partitioned — before 
the  sale  was  made,  the  Court  on  a  petition  for  that  purpose,  corrected  the 
error.     Edgerton  and  others  v.  Muse  and  Wife, 53 

2.  Rent  and  hire  to  which  plaintiffs  were  entitled  under  a  former  decree  set 

out  in  this  bill,  now  allowed.     Adm'rs  of  Johnson  v.  Fx'ors  v.  of  Johnson,  297 

3.  A  decree  obtained  by  fraud  may  be  set  aside  oa  an  original  bill   for  that 

purpose  ;  but  on  a  bill  to  obtain  satisfaction  of  a  former  decree,  the  defcml- 
ant  in  his  answer  cannot  avail  himself  of  this  so  as  to  resist  performance. 
Caldwell,  Adm'r,  v.  Giles, 548 

4.  A  former  decree  against  one  as  administrator  on  a  bill  to  compel  delivery  of 

slaves  claimed  under  a  gift  from  intestate,  will  not  conclude  his  rights  as 
creditor,  on  a  bill  by  him  against  the  former  plaintiffs  to  set  aside   the 

conveyance  for  fraud.     Jones  ij-  Bri(j(js  v.  Blake  and  Wife, G35 

See  Evidence,  G.     Pleading,  2. 


506  INDEX. 

DEED. 

1,  ^Vliere  ore  signed  a  deed  conveying  several  slaves  in  trust  to  his  son  witli 

limitations  over,  and  kept  the  deed  ;  neither  the  trustees  nor  the  son  being 
present;  and  the  son  had  possession  of  some  of  the  negroes  at  the  time, 
and  afterwards  got  the  others  ;  but  there  was  no  proof  that  he  ever  recog- 
nized the  deed:  Held,  that  there  was  not  such  evidence  of  delivery  of  the 
deed  as  to  subject  the  property  to  its  limitations.  Jackson  and  others 
v.  Inabnit 415 

2.  A  deed  without  any  consideration  at  its  execution   may  be  supported  by 

parol  proof  of  a  subsequent  valuable  consideration.  Banks  v.  Broicn  and 
others, 563 

See  Appointment.     Estoppel,  1.     Recokding,  1.     Waiver. 

DELIVERY. 

1.  Defendant  J.  I.  M.,  with  a  view  to  prevent  family  discord,  and  to  relieve 
himself  from  the  suspicion  of  having  exercised  undue  influence  over  his 
mother,  who  had  by  deed  and  will  given  him  the  bulk  of  her  estate, 
executed  bonds  in  trust  to  his  brother  for  the  payment  of  certain  sums  for 
the  benefit  of  the  eldest  daughter  of  each  of  his  sisters  ;  left  them  with  his 
brother,  and  having  informed  the  parties  interested  of  this  proceeding, 
went  to  Europe,  where  he  still  remains,  leaving,  however,  a  large  estate 
here  in  the  care  of  his  brother;  the  bonds  meanwhile  remaining  unpaid, 
and  the  trustee  having  taken  no  measures  in  relation  to  them: — Held,  that 
there  was  sufScient  evidence  of  delivery  ;  that  the  bonds  were  irrevocable, 
and  sustained  by  a  sufEcieut  consideration,  and  the  trustee  was  decreed  to 
account      Fogg  and  Wife  v.  iliddleton 591 

2.  A  gift  executed  by  delivery  is  binding.     Actual  manual   delivery  is  not 

necessary  ;  it  is  enough  that  the  donee  have  possession  with  the  assent 
of  the  donor ;  and  therefore  where  the  defendant  was  an  executor  in 
possession  of  an  estate,  the  management  of  which  required  extraordinary 
trouble,  and  the  legatees  wrote  to  him  to  retain  one  thousand  dollars  of  . 
the  funds  in  hand  as  a  present,  which  he  accepted,  and  afterwards  filed  a 
bill  for  an  accourt:  Held,  that  the  plaintiifs  were  bound  and  defendant  was 
allowed  this  sum  in  making  up  the  accounts.     Esswein  v.  Seigling,  E.c'or,...  601 

3.  What  will  be  sufficient  evidence  of  delivery  to  constitute  a  gift.     Jones  ^ 

Briggs  \.  Blake  and  Wife, 632 

See  Deed,  1.     Emancipation  of  Slaves,  2. 

DEVISE. 
^  See  Will. 

DEVISEE. 
See  Assets.     Judgment,  1.     Parties,  3. 

DOWER. 

1.  When  the  wife  may  claim  dower,  and  at  the  same  time  take  under  her  hus- 

band's will  — The  cases  on  the  subject  considered.  Gordon,  AdrnW,  v.  Stevens.     47 

2.  To  exclude  the  right  of  dower,  the  intent  must  appear  by  express  words,  or 

by  clear  and  manifest  implication.     lb 48 

3.  A  devise  of  lands  to  trustees  to  sell,  or  with  directions  to  executors  to  sell, 

passes  the  estate  subject  to  dower: — and  where  the  testator  bequeathed 
to  his  wife  all  the  property  which  he  obtained  by  her  in  marriage,  and 
directs  that  his  estate  be  sold  to  pay  his  debts  and  provide  for  his  children  : — 
Held,  that  the  wife  was  entitled  to  dower,  notwithstanding  she  accepted  the 
legacy,  and  that  the  sale  of  the  land  must  be  subject  to  that  right.     lb....     49 

4.  A  wife  is  not  dowable  of  an  estate  held  by  the  husband  as  trustee.   Thompson 

and  WifeY.  31urray  and  Wife 213 

5.  A  renunciation  of  dower  on  a  mortgage  cannot  operate  beyond. the  estate 


INDEX.  507 

conveyed  so  as  to  have  the  effect  of  n,  perpetual  bar— it  cnn  only  postpone 
the  claim  of  dower  to  the  satisfaction  of  the  lien,  and  the  land  stands 
as  a  security  for  the  debts  secured  by  the  mortfiape  unincumbcrfd  by 
the  wife's  rights;  the  other  creditors  have  no  right  to  the  aid  of  tlie  wife's 
dower  for  the  jiayment  of  their  debts:  tlierefore  where  the  wife  had 
renounced  her  dower  on  mortgages  by  her  husband,  and  after  his  dcatli 
on  marshaling  his  assets  in  the  Court  of  Equity  the  mortgage  de))ts 
were  paid  out  of  the  personalty,  it  was  held  that  the  widow  w'as"  entitled 
to  her  dower,  and  a  sum  of  money  assigned  in  lieu  thereof,  was  ordered 
to  be  paid  to  her,  out  of  the  land  which  was  ordered  to  be  sold  f(n-  the 

payment  of  debts.     Kecklcy  v.  Keckley 252 

6.   The   widow  is  entitled  to  interest  or  mesne   profits  up  to  the    time  her 

dower  is  assigned  to  her.     Gordon,  Admr,  v.  Stevens 420 

EMANCIPATION  OF  SLAVES. 

1.  Before  the  Act  of  1800,  emancipation  was  permitted  in  any  way  in  which  the 

master  might  signify  his  intention. — That  statute  does  not  render  any  act  of 
emancipation  which  does  not  conform  to  its  provisions  void,  but  merely 
subjects  the  slave  so  illegally  emancipated  to  seizure;  and  until  seizure, 
the  slave  so  emancipated  will  be  regarded  as  free.   Monk,  Adnir,  v.  Jenkins     13 

2.  The  delivery  of  a  deed  of  emancipation,  after  long  lapse  of  time,  and  the 

enjoyment  of  rights  under  it  may  be  presumed;  but  the  only  delivery 
contemplated  by  the  Act  of  1800,  is  the  lodging  it  with  the  clerk  to  be 
recordeil,  and  it  is  the  duty  of  the  master  to  lodge  it.     Ih 14 

3.  Lodging  a  deed  of  emancipation  with  the  clerk,  is  a  sufficient  recording; 

and  with  respect  to  any  person  seizing  the  slave,  if  the  deed  was  in  the 
office  at  the  time  of  seizure,  the  presumption  would  be  that  it  was  lodged 
in  due  time.     lb 14 

4.  The  Act  of  1820  (p.  22j  relates  to  emancipation  within  the  State  only,  and 

does  not  prohibit  the  removal  of  slaves  to  another  State  for  the  purpose 

of  being  emancipated.     Frazier  and  others  y.    Frazier's  I'Jx'ors 31-t 

5.  The  owner  of  property  may  by  his  will  direct  his  executors  to  dispose  of  it 

in  any  way  he  could;  and  as  he  could  in  his  lifetime  have  removed  his 
slaves  to  another  State,  and  there  have  emancipated  them,  he  may  by  will 
direct  his  executors  to  remove  and  emancipate  them.     lb 315 

6.  Testator  by  his  will  directed  his  negroes  to  be  hired  out  during  the  life  of 

his  wife,  and  at  her  death  declares  "it  is  my  will  and  desire  that  tlie  whole 
of  my  negroes  be  set  free  by  my  executors,  and  the  amount  of  money 
arising  from  the  hire  of  the  said  negroes  be  equally  divided  among  them; 
and  if  the  hire  does  not  amount  to  one  hundred  dollars  each,  it  shall  be 
made  up  out  of  the  other  part  of  my  estate:  the  interest  of  the  money  is 
to  enable  them,  with  the  assistance  of  government,  to  go  to  St.  Domingo 
to  be  colonized,  or  to  any  part  they  with  government  maj' choose." — Held, 
that  the  intention  of  the  testator  was  that  his  slaves  should  be  removed 
to  parts  where  emancipation  is  lawful,  and  there  be  emancipated;  that 
such  will  was  legal  and  would  be  enforced :  and  on  a  bill  by  the  next  of 
kin  claiming  the  slaves,  the  executors  were  ordered  to  remove  the  slaves 
to  parts  beyond  the  State  wiiere  emancipation  is  lawful  and  there  set  them 
free;  that  they  defray  the  expenses  of  removal  from  the  interest  on  tiie  one 
hundred  dollars  bequeathed  to  each  of  the  slaves,  and  that  they  pay  the 
legacies  of  one  hundred  dollars  each  to  them  after  being  so  emancipated. 

lb 316 

See  Slaves,  5,  G. 

ESTOPPEL. 

1.  The  question  considered  whether  a  party  may  in  contradiction  to  his 
acknowledgment  in  his  deed  show  that  the  consideration  has  not  in  fact 
been  paid.  It  seems  that  although  he  may  show  other  and  further  con- 
siderations consistent  with  the  deed  he  may  not,  except  in  case  of  fraud  or 


508  INDEX. 

usury,  contradict  the  deed  by  showing  that  no  consideration  was  received. 

Gist  V.  Davis  and  others ;•• ^^o 

2.  None  but  parties  and  privies  are  estopped  by  a  judgment. — Giving  a  bond 
of  indemnity  to  the  sheriif  for  not  paying  over  money  to  a  claimant,  will 
not  make  one  a  privy  so  as  to  be  concluded  by  the  judgment  against  the 
sheriif  for  the  money  ;  although  the  sheriff  gave  him  notice  to  defend 
the  action  and  he  actually  did  defend  it.  The  verdict  would  be  con- 
clusive against  him  in  an  action  by  the   sheriff  on  the  bond,  but  not  as 

to  others.     lb 345 

See  Executors  and  Administrators,  1.     Husband  and  Wife,  7.    Trust. 

EVIDENCE. 

1.  Generally  the  declarations  of  a  grantor  made  after  a  sale  cannotbe  admitted 

to  impeach  the  sale;  but  where  there  is  a  community  of  interest  and 
design  in  several,  or  circumstances  showing  a  conspiracy  between  the 
grantor  and  the  defendants  to  defraud  the  plaiutitF,  such  declarations 
would  he  admissible.     Belly.  Coiel 109 

2.  Where  the  items  in  an  account  book  were  read  over  to  the  party  charged, 

who  objected  to  a  few  items  only,  the  book  may  be  received  in  evidence  as 
his  admission.     Lever  v.  Lever 159 

3.  On  a  bill  for  an  account  against  an  agent,  his  books,  if  the  entries  are  made 

in  the  usual  course  of  business,  are  admissible  against  the  principal; 
especially  when  both  parties  are  dead  and  there  is  strong  corroborating 
evidence  of  the  correctness  of  the  books.      Sinclair  ^-  Kiddle  v  Price,  {note)   160 

4.  Unless  the  books  of  an  agent  purport  to  contain  an  account  of  all  payments 

to  and  for  his  principal,  he  will  not  be  confined  to  them  in  discharging 
himself.     Lever  v.   Lever 161 

5.  V/here  the  books  of  an  agent  profess  to  contain  an  account  of  all  receipts, 

payments  and  services,  on  account  of  tiie  agency,  and  are  offered  in 
evidence  by  the  agent,  he  shall  not  be  allowed  any  other  charges  than 
those  there  contained.     Sinclair  and  Kiddies.  Price,  [note) 163 

6.  A  decree  against  executors  of  an  executor,  is  prima  facie  evidence  against  the 

legatee  of  the  first  testator  on  a  bill  to  charge  the  legacy.  M'Mullin,  Ad- 
ministrator, v.  Brown, 460 

7.  On   a  question  as  to  identity  of  slaves,  it  is  admissible  to  prove  that  the 

slaves  in  question  were  called  certain  names,  and  said  by  other  negroes 

to  belong  in  a  certain  gang.     Horry  and  Trapier  v.  Glover  and  other 517 

8.  On  the  question  as  to  the  identity  of  slaves,  where  the  original  stock  are  all 

dead,  hearsay  coming  from  negroes,  that  those  claimed  are  descendants,  is 
admissible.     lb 527 

See  Witness. 

EXECUTION. 

A  \qvj  \s  prima  facie  evidence  of  satisfaction: — but  this  presumption  maybe 
rebutted  by  showing  that  satisfaction  in  fact,  has  not  and  could  not  have 
resulted  from  the  levy  by  reason  of  senior  executions  which  would  have 
covered  a  larger  amount  than  the  value  of  the  levy.  Peay  v.  Fleming  and 
others, 99 

See  Injunction,  1.     Legacy,  1.     Lien,  2,  4.     Sheriff's  Sale,  1. 

EXECUTORS  AND  ADMINISTRATORS. 

1.  The  grant  of  administration  has  relation  to  the  death  of  the  intestate,  and 
legalizes  the  intermediate  acts  of  the  administrator;  and  a  judgment 
against  an  executor  de  son  tort,  will  be  valid  against  him  after  he  has 
regularly  administered,  and  binds  the  estate,  unless  fraud  or  collusion  be 
shown.  The  administrator  in  such  case  will  be  estopped  from  denying  his 
former  executorship.      Walker,  Adm'r,  v.  May  and  others, 23 

-.  An  executor  or  administrator  is  not  discharged,  from  accounting  to  a 
legatee  for  a  fund  assigned  to  him  by  the  other  legatees,  on  the  ground  that 


INDEX.  509 

he  has  no  assets  in  his  hands  in  consequence  of  the  legatees  having  pur- 
chased at  his  sale  more  than  the  amount  of  their  shares.  Sims  v.  Sims,  Adm'r.     G'J 

3.  If  an  administrator,  on  a  sale  ol  his  intestate's  i)roperty,   take  any  other 

security  than  that  required  by  tlie  terms  of  the  order  for  sale,  he  becomes 
personally  responsible,  and  if  loss  ensue  it  must  fall  on  him.  I'eay  v. 
Fleming  and  others, 98 

4.  Where  an  executor  is  excused  from  making  interest,  or  permitted  to  retain 

funds  in  his  hands  without  being  charged  witli  interest,  generally  the 
burden  is  cast  on  the  other  side  to  show  that  he  has  made  interest  or 
used  the  funds  himself;  in  such  cases,  it  seems  that  tlic  answer  of  the 
executor  should  deny  that  he  has  made  interest  or  used  the  funds.  Chest- 
nut and  WifeY.  Strong,  Ez' or 150 

5.  In  the  absence  of  proof,  the  legal  presumption  is  that  the  notes  given  to  the 

executor  at  his  sale,  were  paid  at  maturity,     lb 151 

6.  Pending  suit  against  him,  the  executor,  after  tender  to  one  of  the  legatees, 

deposited  the  amount  due  with  the  Commissioner,  with  instructions 
not  to  pay  it  over;  the  legatee  afterwards  demanded  it: — Held,  that  he 
was  entitled  to  interest  from  the  time  of  demand.     lb 1.51 

7.  How  far  the  Court  will  interfere  to  prevent  the  negotiation  by  an  executor 

or  administrator,  of  notes  or  bonds  taken  by  him  on  sale  of  the  deceased's 
effects.     Thackum  and  Wifey.  Longworth, 274 

8.  An  executor  being  indebted  to  the  defendant  the  executor  of  another  estate, 

by  bond  secured  by  mortgage,  while  solvent,  transferred  to  defendant 
in  payment  of  his  own  debt,  bonds  taken  on  a  sale  of  his  testator's  estate, 
and  defendant  gave  up  his  bond  and  mortgage,  and  paid  over  the  money 
to  the  legatees.  The  executor  became  insolvent,  and  on  a  bill  by  the 
legatees  of  his  testator,  it  was  held  that  the  defendant  was  not  liable  for 
the  money  received  by  him,on  the  bonds — the  equities  being  equal  the  law 
must  prevail,     lb 275 

9.  After  the  division  of  an  estate  and  the  appointment  of  a  guardian  for  a  minor 

legatee,  the  executors  are  no  longer  accountable  for  the  income  of  the  estate 
assigned  to  the  minor;  his  guardian  is  alone  entitled  to  possession  of  the 
estate,  and  must  account  acconlingly.  Adnir's  of  Johnson  v.  Ex'ors  of 
Johnson, 284 

10.  Liability  of  co-executors  for  the  acts  of  each  other  considered  and  the 
cases  on  the  subject  examined.     lb 289 

11.  The  result  of  the  cases  seem  to  be  that  where  by  an  act  done  by  one  executor, 
any  part  of  the  estate  comes  to  the  hands  of  his  co-executor,  the  former 
will  be  answerable  for  the  latter  in  the  same  manner  as  for  a  stranger 
whom  he  had  enabled  to  receive  it — and  there  is  no  distinction  in  respect 

to  their  liability,  between  legatees  and  creditors,     lb 293 

12.  An  executor  who  applied  to  the  ordinary  for  an  order  of  sale  and  returned 
the  sale  bill  held  liable  for  the  amount  of  the  sale,  although  his  co-executor 
assisted  in  the  sale  and  received  part  of  the  money,     lb 295 

13.  An  executor  or  administrator  is  only  required  to  manage  the  estate  in  his 
charge  as  a  prudent  man  would  his  own,  and  in  case  of  loss,  the  question 
of  his  liability  cannot  be  resolved  by  any  general  rule  but  depends  on 
the  particular  circumstances  of  each  case.     Bryan  v.  Mulligan,  Ex  or 361 

14.  Generally  it  is  the  safer  rule  for  an  executor  to  sell  the  produce  of  the 
estate  in  the  market  usually  resorted  to;  but  when  acting  in  good  faith  and 
under  a  reasonable  expectation  of  a  greater  protit,  he  shipped  the  cotton  to 
Liverpool,  instead  of  selling  it  in  Charleston,  and  the  Liverpool  price  was 
less  than  he  was  offered  in  Charleston,  he  will  not  be  chargeable  with  the 
loss,     lb 864 

15.  An  administrator  selling  the  personal  estate  of  his  intestate  under  the 
order  of  the  Ordinary,  is  allowed  to  become  a  purchaser,  when  be  sells  fairly 
and  pays  the  full  value.  Therefore  a  purchase  of  a-slave  by  an  administrator 
at  his  own  sale,  under  an  order  of  the  Ordinary  at  a  fair  price  and  without 
fraud,  was  sustained  against  the  bill  of  the  distributees  seeking  to  set  it 
aside.     Stalling s  and  Wifes.  Foreman,  Adm'r 405 

16.  The  cases  in  this  State,  as  to  purchases  by  executors,  administrators 
and  other  trustees,  at  their  own  sales,  reviewed.     lb 405 


510  INDEX. 

17.  On  a  review  of  tlie  rights  and  liabilities  of  executors  and  administrators  at 
common  law  and  under  our  Acts  of  Assembly,  it  seems  they  may  acquire 
their  testator's  or  intestate's  property,  provided  the  sale  is  fuirly  made 
under  the  authority  of  the  will  or  the  order  of  the  Ordinary,  and  that  the 
price  is  'he  true  value  of  the  property.    Stallings  ei  ux.  v.  Foreman,  AdinW.   408 

18.  The  reason  of  the  rule  which  avoids  the  purchases  at  his  own  sale  of  a 
trustee  to  sell,  does  not  apply  to  executors  and  administrators ;  and  those 
entitled  by  law  to  administi-atiou,  would  often  decline  it  if  prevented  from 
buying.     lb 409 

19.  Where  an  executor,  who  was  also  a  legatee  purchased  at  his  own  sale,  made 
under  the  order  of  the  Ordinary,  and  appointed  one  agent  to  sell  and 
another  to  buy ;  his  purchases  were  set  aside  by  Chancellor  Johnston,  on 
the  general  principle,  that  for  the  prevention  of  fraud,  a  trustee  to  sell 
shall  not  be  permitted  to  buy  at  his  own  sale;-  and  if  he  does,  his  pur- 
chases maybeconiirmed  or  set  aside,  at  the  option  of  the  parties  interested. 
Britton  and  Wife  v.  Johnson 434 

20.  Purchase  by  an  administrator,  (who  was  also  a  distributee,)  at  his  own 
sale,  at  a  price  less  than  the  appraisement,  set  aside  by  Chancellor  John- 
ston, on  the  ground  that  a  trustee  to  sell  cannot  purchase  at  his  own  sale, 
and  the  administrator  ordered  to  account  fo.'  the  difference  between  his  bid 
and  the  real  value.  Decree  confirmed  by  Appeal  Court,  as  to  setting  aside 
the  sale,  but  modified  by  ordering  a  re-sale  of  the  property.  Crispin  v. 
Taylor,  (note) 435 

21.  The  practice  on  purchases  by  executors  and  administrators  at  their  own 
sales,  being  set  aside,  is  to  order  a  re- sale  of  the  property,  and  if  more  be 
bid  than  was  bid  before,  that  it  go  to  the  highest  bidder ;  if  not,  the  first 
sale  is  afBrmed.     Jb 430 

22.  Where  an  administrator  rendered  an  erroneQ,us  statement  of  assets,  and 
paid  the  creditors  their  proportion  thereof,  and  took  their  assignments  for 
the  balance: — Held,  that  he  should  not  be  permitted  to  retain  to  his  own  use 
the  funds  afterwards  collected.  As  a  trustee,  he  cannot  make  profit  to 
himself  of  the  trust  estate. — Assignments  set  aside,  errors  corrected,  and 
administrator  ordered  to  account.    Robinson  and  others  y.  Gist,  Adm'r 467 

23.  Bill  by  administrators  de  bonis  non  against  defendant  to  account  as  former 
administrator,  his  administration  having  been  revoked.  There  were  but 
two  distributees,  of  whom  defendant's  wife  was  one :  he  had  paid  the  debts 
and  obtained  an  assignment  from  the  other  distributee.  IJe/d,  that  the 
validity  of  the  deed  of  assignment  could  not  be  impeached  by  the  plaintiff. 
If  obtained  by  fraud,  none  but  the  distributee  or  his  representatives 
could  impeach  it,  and  it  was  a  fraud  on  his  creditors,  they  only  could 
complain.     And  for  the  same  reason  the  will  of  the  distributee  disposing 

of  his  interest  in  the  estate,  was  rejected.     Thompson,  Adm'r,  v.  Buckner..  500 

24.  And  a  decree  in  favor  of  defendant's  wife  for  alimony  settling  her 
portion  of  her  father's  estate  to  her  separate  use,  is  irrelevant  and  in- 
admissible. The  administrator  de  bonis  nan  cannot  call  defendant  to 
account  for  her  benefit.     She  might  enforce  her  own  decree.     lb 501 

25.  Nor  cnn  the  administrator  de  bonis  non  in  such  case  sustain  the  bill  on 
account  of  judgments  remaining  of  record  unsatisfied  ;  especially  where 
from  lapse  of  time  they  may  be  presumed  to  be  satisfied,  and  where  the 
judgment  creditors  are  not  parties  claiming  payment.  To  require  defendant 
to  account  on  that  ground,  they  should  come  in  and  swear  that  their 
judgments  are  unsatisfied,  and  it  should  appear  that  the  defendant  had 
notice  of  their  demands  within  the  year;  after  that,  without  notice,  he 
would  not  be  liable  as  administrator,  and  the  creditors  would  be  left' to 
their  remedy  against  the  distributees.     lb 501 

26.  Administration  ought  in  no  case  to  be  granted,  but  to  kindred  or  creditors, 
or  on  their  application,  and  where  there  are  neither,  the  Ordinary  is  only 
authorized  to  grant  administration  (7(/ co/%f«(;?a  6o»a.     lb 503 

-7.  An  administrator  cannot  set  aside  the  gifts  or  contracts  of  his  intestate, 
on  the  ground,  that  they  were  made  in  fraud  of  creditors.  He  has  no 
other  rights  than  his  intestate  had.     King  v.  Clarke 613 

^».  Administrators  of  the  same  intestate  in  different  States,  are  so  far  in- 


INDEX.  511 

dependent  of  each  other,  that  a  judgment  against  one  furnishes  no  right 
of  action  against  the  other.  There  is  no  privity  between  them.  King  v. 
Clarke CI 4 

£0.  An  executor  or  administrator  who  litigates  in  good  faith,  shall  be  allowed 
costs  out  of  the  estate  ;  but  where,  with  sutFicient  funds  in  his  hands,  he 
suffers  himself  to  be  sued,  having  no  just  defence,  he  must  pay  the  costs 
himself.  On  judgment  by  default,  he  would  be  liable  for  the  costs 
de  bonis propriis  at  law;  (Giles  v.  Pratt,  1  Hill,  244,)  and  in  Equity,  he  can 
only  be  excused  by  showing  a  want  of  funds.     Davis  v.  Davis,  Adm'r 377 

See  Account.  Assets.  Attachment,!.  Commissions,  2.  Council  Fkk,  ],  2. 
Delivery,  2.     Guardian  and  Wakd,  3.     Husband  and  Wife,  5,  0.     Im- 

PEOVEMENTS,    2.       JUDGMENT,    1,   2.       LEGACY,    1.       LIMITATIONS  StAT.   OF,   3, 

6,  7,  8,  9.     Parent  and  Child,  1,  2.     Parol.     Evidence,  2.     Slaves,  6. 

FEES  CONDITIONAL. 

The  Doctrine  of  Fees  Conditional  Considered. — Edwards  v.  Barksdale,...  196 
See  Limitation  of  Estates,  2,  3. 

FRAUDS,  STATUTE   OF. 

1.  Oa  a  sale  of  land  at  auction,  the  auctioneer  is  the  agent  of  both  parties, 

and  his  memorandum  in  writing  is  sufficient  to  take  the  agreement  out  of 
the  statute  of  frauds.      Ep.  Church  of  3/aco?i\.    Wiley 590 

2.  And  when  the  auctioneer  made  a  pencil  memorandum  on  a  loose  slip  of  paper 

at  the  moment  of  sale,  and  shortly  afterwards  entered  the  sale  in  his  sales 
book,  the  latter   is  regarded  as  the  true  entry.     lb 590 

3.  And  where  the  auctioneer  entered  the  sale  as  made  to  the  agent  the  contract 

m.ay  be  enforced  agarnst  the  principal  when  be  is  discovered  ;  and  the    " 
authority  of  the  bidder  need  not  be  in  writing.     lb 590 

FRAUDULENT  CONVEYxiNCE. 

1.  General  rules  for  determining  whether  conveyances  be  fraudulent,  and  the 

cases  on  that  subject  considered.      Union  Barik  v.  Toomer 31 

2.  When  a  consideration  is  paid  in  order  to  avoid  the  conveyance,  the  Court 

must  be  satisfied  of  an  actual  fraudulent  intention  and  the  preponderance 
of  authority  seems  to  be,  that  the  purchaser  must  be  a  party  to  the  fraud. 
lb 82 

3.  S.  II.,  being  infirm  and  unable  to  manage  her  business,  conve3'ed  her  land 

and  most  of  her  slaves  to  the  defendant,  he  paying  certain  debts,  (which, 
after  inquiry,  were  believed  to  be  all  she  owed,)  and  an  annuity  for  her 
life  equal  to  the  appraised  value  of  the  property  deducting  the  debts:  after 
the  death  of  S.  H.  judgment  was  obtained  against  her  executors  on  a  bond 
executed  by  her  as  surety,  and  which  existed  before  the  conveyance:  on 
a  bill  by  the  judgment  creditor  to  set  aside  the  conveyance  on  the  ground 
of  inadequacy  of  price  and  charging  that  it  was  fraudulent  as  to  creditors; 
there  being  no  evidence  that  the  defendant  knew  of  this  debt,  or  that  fraud 
was  intended,  it  was  held  that  the  conveyance  was  valid.     lb C3 

4.  One,  apprehensive  that  a  decree  for  a  large  amount  would  be  had  against 

him,  and  with  a  view  to  defeat  it,  gave  his  bond  to  the  defendant,  his 
son,  for  twenty  thousand  dollars,  on  which  judgment  was  obtained,  and 
moneys  arising  from  the  sales  of  property  by  the  sheriff  claimed  under  it. 
On  a  bill  to  set  aside  the  bond  and  judgment  as  fraudulent  and  void,  the 
defendant  admitted  that  the  sum  of  three  hundred  and  eighty-two  dollars 
was  all  that  was  really  due  to  him,  and  claimed  that  the  judgment  should 
stand  as  a  security  for  that  amount: — Held,  that  the  defendant,  as  a  party 
to  the  fraud,  was  entitled  to  no  favor;  that  the  Court  would  not  examine 
into  the  fraud  to  ascertain  if  any  thing  be  really  due;  and  the  bond  and 
judgment  being  fraudulent  and  void,  the  defendant  should  derive  no  benefit 
from  them.     Fryer  and  Wife\.  Bryan 56 

5.  When  actual  fraud  in  a  judgment  or  conveyance  is  clearly  proved,  it  is  wholly 

void  and  will  not  be  permitted  to  stand  as  a  security  for  what  is  actually  due ; 


512  INDEX. 

but  -when  Equity  infers  fraud  from  the  circumstances  and  relation  and 
character  of  the  parties,  it  is  at  the  discretion  of  the  Court,  to  allow  the 
secufity  to  stand  good  for  what  is  really  due.     Parker  v.  Holmes 95 

6.  A  deed  from  a  man  to  a  womnn  with  whom  he  had  lived  in  a  state  of  adultery, 

held  to  be  voluntary,  and  the  property  thereby  conveyed,  (after  exhausting 
the  assets  at  the  death  of  the  grantor,)  decreed  liable  to  his  debts.  Ilar- 
g roves  and  Wifoy.  Meray  and   Wife 227 

7.  There  is  a  ditJ'evence  between  an  absolute  sale  and  a  mortgage  in  respect 

to  the  effect  of  the  grantor's  retaining  possession  :  in  the  first  it  is  in  the 
common  course  that  possession  should  be  changed,  and  if  it  is  not.  it  is 
evidence  of  fraud  ;  but  this  is  not  the  course  in  the  case  of  a  mortgage, 
and  the  mere  circumstance  of  the  mortgagor  retaining  possession  until 
condition  broken,  is  not  of  itself  evidence  of  fraud.      Gist  y.  Pressley 325 

8.  Even  after  condition  broken  a  mortgage  is   still  different  from   an  absolute 

sale.— It  is  not  the  usual  course  that  the  mortgaged  property  should  be 
seized  immediately  after  condition  broken — some  degree  of  neglect  in  this 
respect  will  not  infer  fraud  ;  great  neglect  may.     lb 328 

9.  A  creditor  seeking  to  set  aside  a  voluntary  conveyance  for  fraud,  must  shaw 

that  his  debt  existed  at  the  time  of  the  conveyance  by  such  evidence  as 
would  establish  it  in  an  action  at  law  ;  and  that  he  cannot  be  paid  unless 
the  conveyance  is  set  aside.     King  v.  Clarke, 617 

10.  The  decision  in  Smith  v.  Henry,  (1  Hill,  1(),)  that  a  debtor  in  giving  a 
preference  by  conveyance  of  his  property,  to  one  creditor  over  another, 
shall  not  secure  an  advantage  to  himself  at  the  expense  of  creditors  as  the 
price  of  .such  preference,  means  a  certain  direct  benefit  or  advantage  to 
be  derived  from  the  use  of  the  property.  And  therefore,  where  a  debtor 
transferred  slaves  to  his  daughter  in  satisfaction  of  a  precedent  debt,  and 
retained  possession  of  them  under  an  agreement  to  pay  hire,  the  convey- 
ance was  held  to  be  valid,  and  was  sustained  against  the  other  creditors. 
Jones  ^  Briggs  v.  Blake  and  Wife, G3G 

See  Decree,  4.  Ex'oks  and  Adm'es,  27.  FIusband  and  Wife,  25.  Judg- 
ment, 2.  Jurisdiction  of  Chancery,  1.  xMarriage  Settlement,  9, 
10,  11,     Witness,  1. 

GIFT. 
See  Delivery,  2,  3.     Judgment,  2. 

GUARDIAN  AND  WARD. 

1.  Under  what  restrictions  the  Court  of  Chancery  may  order  the  funds  of  an 

infant  under  its  control,  to  be  paid  to  a  guardian  appointed  and  residing 

in  another  State.      Ex  parte  Heard, 55 

2.  Guardian  intending  to  remove  from  the  State  with  her  wards,  the  Court 

required  her  before  entering  on  the  appointment  to  give  bond  for  the  return 
of  one  of  them  at  a  suitable  age  to  receive  his  education  in  this  State,  and 
of  both,  when  required  by  the  Court.     Ex  parte  Martin, 71 

3.  When  from  the  facts,  an  executor  who  was  also  guardian  might  be  charged 

with  the  receipt  of  moneys  either  as  executor  or  guardian,  he  must  account 
in  the  latter  character;  for  whatever  funds  he  had  in  his  hands  as 
executor,  were  by  operation  of  law,  transfered  to  him  as  guardian. 
Adm'rs,of  Jolmson  v.  Ex" ors  of  Johnson, 285 

4.  A  parol  discharge  of  a  guardian  by  his  ward  just  after  coming  of  age,  with- 

out an  account,  will  not  bar  an  account  against  the  guardian.     Ih 28G 

5.  The  security  of  a  guardian  is  liable  for  the  default  of  his  principal,  to  the 

amount  of  the  penalty  of  the  bond,  and  not  merely  to  the  value  of  the  pro- 
perty set  out  in  the  petition  praying  the  appointment.     lb 28( 

G.  Guardian  who  is  co-tenant  with  his  ward  liable  for  his  rent,  although  he 
may  not  have  used  beyond  his  own  interest.  He  should  have  made  her  land 
productive.     Harley  and  Wifev.De  Witt 370 

7.  Plaintiff's  and  their  mother  being  jointly  entitled  to  an  estate  the  latter 
administered  and  proceedings  in  equity  for  partition  were  had  in  which 


INDEX.  513 

the  mother  was  appointed  guanliaii  of  her  iiifnnt  chiklren,  an<l  a  snle  was 
ordered  for  one-third  cash,  aud  credit  for  the  balance  witli  bond  and  mort- 
gage to  secure  the  purchases.  At  the  sale  the  motlier  purcbas-eil  the 
principal  part  of  the  estate,  both  real  and  personal,  and  gave  bond  and 
mortgage  for  the  real,  but  paid  no  money,  and  afterwards  had  the  bund 
and  mortgage  assigned  to  herself  as  guardian,  gave  her  rocpipt  to  the 
Commissioner  as  such,  for  the  shares  of  lier  children,  and  took  titles. 
Defendant  knowing  the  terms  of  the  sale,  (having  acted  as  agent  of  the 
mother  in  the  management  of  the  estate,)  and  that  no  money  was  in  fact 
paid,  obtained  a  mortgage  on  the  real  estate  purchased  by  her,  to  secure 
a  debt  due  by  her  individually:  Ildd,  that  the  mortgage  of  the  defendant 
must  be  postponed  until  plaintiff's  claims  are  satisfied.  Messervey  and 
others  v.  Barelli,  507 

8.  Where  the  Commissioner,  under  the  order  of  the  Court  to  deliver  to  the 

guardian  the  portions  of  her  wards,  whether  in  money  or  bonds,  delivered 
up  the  guardian's  bond  given  for  purchases  on  sales  for  petition,  this  is 
not  a  discharge  of  the  bond  and  a  satisfaction  of  the  mortgage  to  secure  it ; 
and  defendant,  with  a  knowledge  of  the  facts  taking  a  mortgage  from  the 
guardian  of  the  property  purchased,  takes  subject  to  the  equities  of  the 
wards.     lb 574 

9.  The  real  estate  of  the  guardian  purchased  at  the  partition  sale  and  mortgaged, 

first  ordered  to  be  sold  and  applied  to   the  plaintiffs'   claims  before   that 

mortgaged  by  guardian  to  defendant.     lb 582 

See  Account.     Bond  Debt,  2.     Executors  and  Administrators,  9.     Lien,  5. 
Limitations,  t-TAT.  of,  9.     Mistake.     Parent  and  Child,  1,  2. 

HEIR. 

See  Asset?.   Husband  and  Wife,  2,  3.    Judgment,  1.    Limitation  of  Estates, 
3,  4,  5.     Marriage  Settlement,  2.     Next  of  Kin,     Parties,  3. 

HIRE. 

1.  The  ten  pound  rule  in  regard  to  the  hire  of  negroes  is  not  an  arbitrary  rule 

of  value,  but  may  be  varied  with  the  circumstances  of  the  case.  It 
imports  no  more  than  that  the  trustee  of  a  planting  interest  who  renders 
no  accounts  shall  not  be  charged  less  than  ten  pounds  per  hand,  and  does 
not  apply  where  greater  profits  were  or  might  ordinarily  have  been  made. 
Ilarley  and  Wife  v-  De  Witt, 3G9 

2.  The  rule  does  not  apply  where  the  hands  were  engaged  in  other  and  more 

profitable  pursuits  than  planting.     Jb 370 

See  Legacy,  4.     Usury,  L 

HUSBAND  AND  WIFE. 

1.  The  husband's  assignment  of  his  wife's  chose  in  action  passes  her  interest 

only  where  he  has  the  power  to  reduce  it  into  possession; — and  where 
he  has  this  power,  his  assignment  will  be  regarded  as  a  reduction  into 
possession:  but  where  he  has  not  the  power  of  reducing  into  possession,  his 
assignment  does  not  transfer  the  property,  until  by  subsequent  events  he 
comes  into  the  situation  of  being  able  to  reduce  it  into  possession ;  and 
then  the  previous  assignment  will  operate  on  his  actual  situation,  and  the 
property  will  be  transferred.     Matheney  y.  Guess  and  others., 6(> 

2.  In  England  the  husband  may  acquire  the  absolute  right  to  his  wife's  chose 

in  action,  even  after  her  death,  by  administration  ;  but  the  rule  is  different 
in  this  State,  for  under  our  statute  of  disti-ibutions,  he  would  only  be 
entitled  to  his  distributive  share  as  her  heir  at  law.     Jb 69 

3.  Where  the  wife  was  entitled  to  an  estate  expectant  on  the  death  .of  her 

mother  and  during  the  lifetime  of  the  wife  and  the  tenant  for  life,  the 
husband  for  a  valuable  consideration,  conveyed  his  wife's  interest  in  the 
estate,  and  she  died  before  the  death  of  the  tenant  for  life  : — Held,  that  the 
assignment  of  the  husband  operated  only  to  the  extent  of  his  own  share  of 


514 


INDEX. 


his  wife's  estate  under  the  Act  of  distributions,  and  did  not  defeat  the  rights 

of  her  children  to  the  remainder.     Ilarhy  and  Wife  v.  De  Witt 70 

4.  When  the  husband  goes  into  the  Court  of  Equity  to  obtain  possession  of  his 

■wife's  choses  in  action,  a  suitable  provision  will  be  made  for  her  and 
her  children.     Heath  v.  Heath  and  others ••••    -lOl 

5.  Executrix,  being  in  the  receipt  of   the  annual  profits  of  an  estate  which 

the  will  directs  shall  be  paid  over  to  the  legatees  on  their  coming  of  age 
or  marriage,  instead  of  paying  it  according  to  the  will,  loaned  out  the 
whole  amount  from  time  to  time  to  the  legatees,  and  among  the  rest  to 
the  husband  of  one  of  them:  on  the  parties  being  brought  into  this  Court, 
and  the  wife  insisting  on  a  settlement:— //eW,  that  if  the  money  advanced 
by  the  executrix  to  the  husband  was  intended  as  a  payment  of  his  wife's 
share,  the  executrix  will  be  allowed  credit;  otherwise,  if  as  a  mere  loan. 
Reference  ordered  on  this  point.     Ih It^o 

6.  The  wife's  interest  in  the  shares  of  two  deceased  children,  which  could  not 

have  been  reduced  into  possession  by  the  husband  at  the  time  the  executrix 
advanced  to  him,  is  not  subject  to  the  payment  of  such  advances.  The_ 
fact  that  the  husband  was  not  entitled  to  possession  until  the  termination' 
of  a  life  estate,  precludes  the  possibility  tliat  a  payment  of  his  wife's 
interest  therein  was  intended.     lb •_•••   105 

7.  A  feme  covert  may  sustain  a  suit  for  her  separate  estate,  her  husband  being 

joined  in  the  bill;  in  such  case  she  will  not  be  estopped  by  his^  deed, 
made  in  his  individual  capacity.     Boijkin  and   Wife  v.  Ciplcs  and  Wife 203 

8.  "Where  no  trustee  has  been  appointed,  the  husband   will    be   regarded   as 

trustee  of  his  wife's  separate  estate;  but  on  bill  filed  by  husband  and  wife 
for  such  estate,  the  Court  will  appoint  another  trustee,     lb 203 

9.  Under  what  circumstances,   a  feme    covert   may   dispose  of  property  by 

way  of  appointment.      Thompson  and  Wife  v  Marray  and  Wife 211 

10.  Where  real  estate  was  conveyed  in  trust  for  a  feme  covert,  and  to  such 

person  as  she,  by  will  or  deed  should  appoint,  her  appointment  by  will  is 
valid  without  the  concurrence  of  her  husband.     lb 214 

11.  When  in  a  settlement  by  the  husband  for  the  separate  maiutenance  of  his 
wife,  the  trustee  covenants  to  save  the  husband  harmless  against  the  wife's 
debts,  this  is  regarded  such  a  valuable  consideration  as  will  protect  the 
property  from  the  husband's  debts,    llargroves  and  Wife  v.  Meray  and  Wife.  220 

12.  Settlement  on  husband  and  wife,  to  their  joint  use  during  coverture,  and 
to  the  survivor;  and  power  given  to  the  trustee  to  sell  and  invest  the 
proceeds,  subject  to  the  same  trusts:  the  trustee  sold,  and  the  husband 
afterwards  by  deed,  assigned  his  interest  in  the  proceeds,  to  the  trustee, 
giving  him  authority  to  reinvest  for  the  benefit  of  his  wife,  in  such  way  as 
she  might  direct;  and  the  trustees  accordingly  reinvested  to  the  sole  and 
separate  use  of  the  wife  during  life,  and  if  she  died  without  leaving  issue, 
then  to  the  husband: — Held,  that  the  husband  had  the  right  to  change  the 
terms  of  the  trust;  and  that  the  rights  of  creditors  must  be  determined  by 

the  interest  he  took  in  the  property  last  acquired.  Allstone  v.  The  Bank..  2L9 
13  Before  marriage  J.  S.  executed  a  deed  to  the  plaintitF  as  trustee,  by  which 
he  settled  on  his  intended  wife,  a  legacy  due  to  her.  The  deed  was 
recorded  in  the  mesne  conveyance  office,  but  not  in  that  of  Secretary  of 
State.  Suit  had  been  brought  before  marriage  for  the  legacy,  and  after 
marriage  a  decree  obtained  in  the  wife's  favor  and  the  funds  received  by 
the  solicitor  employed  to  prosecute  the  suit,  who,  at  the  instance  of  the 
husband,  and  without  the  concurrence  of  the  trustee,  accepted  an  order 
in  favor  of  a  creditor  of  the  husband.  On  a  bill  by  the  trustee  to  declare 
the  creditor's  claim  invalid,  and  to  have  the  settlement  enforced,  the 
Court  decreed  the  trust  fund  recovered  on  the  legacy,  to  be  paid  over 
to  the  trustee.     Ferrydear  v.  Jacobs 50o 

14.  The  order  was  an  assignment  of  the  husband's  interest,  but  he  had  none, 
having  previously  parted  with  it  by  the  settlement,  which,  though  void. 
for  want  of  recording  as  to  creditors  who  could  reach  the  fund  without  the 

aid  of  equity  was  good  between  the  parties.     lb..... 506 

15.  As  the  creditor  cuuld  only  reach  the  wife's  choses  in  action  in  equity, 
the  Court  will,  on  his  application  to  obtain  the  fund,  make  a  settlement 


INDEX.  515 

on  the  wife,  or  one  being  already  made  by  the  husband,  enforce  that.    I'er- 
rifclear  v.  Jaobs 507 

16.  The  husband  and  solicitor  could  not  by  their  act  change  the  rights  of  the 
parties  ;  and  the  acceptance  of  the  order  was  a  nullity,     lb 508 

17.  The  wife  has  the  right  to  a  settlement  out  of  her  separate  property, 
whether  the  application  be  by  the  husband  or  his  assignees  to  obtain  the 
possession,  and  an  assignee  for  valuable  consideration  is  subject  to  the 
same  equity  as  the  husband.     lb 509 

18.  Creditors  of  the  husband  have  no  interest  in  the  wife's  expectancy  not 
reduced  into  possession,  and  if  they  trust  him  on  the  faith  of  it,  it  is  at  their 
peril.     lb 509 

19.  As  the  Court  may  compel  the  husband,  ou  his  application  for  his  wife's 
estate  to  make  a  settlement,  so  he  may  of  his  own  accord  make  one,  and 
that  either  of  a  part  or  the  whole  of  her  estate  ;  and  his  creditors  should 
not  ohject.     lb 610 

20.  In  equity  the  husband  may  make  an  assignment  of  his  wife's  choses  for  her 
separate  use  by  parol ;  and  although  a  deed  of  settlement  not  recorded  is 
void  as  a  marriage  settlement,  it  would  operate  as  an  assignment  of  his 
interest,  and  put  the  property  out  of  the  reach  of  his  creditors,     lb 610 

2\.  On   a    recovery   for  the  wife's  separate    use,   the    marital  rights  cannot 

attach,     lb 610 

22.  Husband  decreed  to  elect  to  hold  his  deceased  wife's  lands  as  tenant  by  the 
curtesy,  or  to  take  under  the  statute  of  distributions.     Gray  v.  Givaiis 513 

23.  The  liusband  having  leased  his  wife's  inheritance  and  died  during  the  term, 
the  administrator,  who  also  acted  under  a  power  of  attorney  from  the  wife, 
received  the  rent  from  the  tenant :  Held,  that  the  wife  was  entitled  to  the 
rent  accruing  after  the  husband's  death.  Broicnand  Wife  v.  Lindsarj,  Adiii'r.  545 

24.  As  regards  lands  owned  by  the  wife  in  fee,  the  dominion  of  the  husband 
continues  no  longer  than  marriage;  after  that,  she  may  defeat  an  unexpired 
lease  of  the  husband  altogether  by  ousting  the  tenant,  or  claim  the  benefit 

of  it.     lb 546 

25.  liusband  being  indebted,  by  deed  expressed  to  be  in  consideration  of  love 
and  aifection,  settled  a  plantation  and  slaves  on  his  wife.  He  was  then 
negotiating  a  sale  of  a  large  real  and  personal  estate  acquired  by  his  wife, 
■which  was  afterwards  made  ;  and  this  deed  was  the  inducement  of  the  wife 
to  renounce  her  inheritance  on  the  sale  of  her  real  estate :  on  a  bill  by  the 
creditors  of  the  husband  to  set  aside  the  settlement  as  voluntary  and 
fraudulent,  and  to  subject  the  property  to  his  debts: — Held,  that  parol 
evidence  was  admissible  to  show  that  the  true  consideration  of  tlie  deed 
was  the  wife's  renunciation  of  her  inheritance,  and  that  such  consideration 
was  sufficient  to  support  the  deed  against  the  creditors.  Banks  v.  Brown 
and  others 562 

26.  A  wife  being  entitled  to  one-half  of  her  father's  estate,  proceedings  in  par- 
tition were  had,  and  a  tract  of  land  ordered  to  be  sold  by  the  Commissioner 
on  a  credit  of  one  and  two  years,  with  bond  and  mortgage  to  secure  the 
purchase-money.  The  husband  purchased,  and  instead  of  giving  bond  and 
mortgage,  gave  his  receipt  to  the  Commissioner  for  one-half  the  purchase- 
money,  his  wife's  share,  and  for  the  other  half  as  guardian  of  the  other 
distributees,  and  received  titles.  After  the  first,  but  before  the  second 
instalment  became  due,  the  husband  died,  and  the  land  was  sold  by  order 
of  this  Court,  as  his  property,  on  a  bill  to  apportion  his  assets.  On  the 
widow's  presenting  her  claim  for  her  share  of  the  sale  of  the  land,  it  was 
held  that  she  was  entitled  to  payment  thereof;  and  to  the  benefit  of  the 
security  of  the  mortgage  which  should  have  been  given,  or  not  being  given, 
that  the  Act  of  the  Legislature  in  such  cases  gave  one.  Wardlaw  v.  Adm'rs 
and  heirs  of  Gray ••  •••   "44 

27.  What  constitutes  a  reduction  into  possession  of  the  wife's  choses  in  action, 

by  a  husband  administrator. — Per  Ch.  Johnston.    Spaim  v.  Stewart;  {note).  648 

28.  Payment  by  the  Commissioner  to  the  husband  of  his  wife's  distributive 
share  of  an  estate,  without  the  order  of  the  Court  is  wrongful ;  and  is  not 
such  a  reduction  into  possession  by  the  husband,  as  that  the  marital  rights 
aitach.      Wardlaw  V.  Adm'rs  and  Heirs  of  Gray 651 

See  Dower.     Marriage  Settlement.     Witness,  1. 


516  II^DEX. 

IMPROVEMENTS. 

1.  Tennnt  for  life  may  be  paid  for  improvements  -vrhen  he  finishes  buildings 

left  unfinished.     Ex  jmrte  Palmer, •••   -17 

2.  An  executor  will  be  allowed  compensation  for  improvements  made  by  him 

on  real  estate,  when  they  are  such  as  the  Court  would  have  authorized; 
and  whether  they  are  such  depends  on  the  fact  whether  they  are  beneficial 
to  all  concerned.     lb -17 

INADEQUACY  OF  PRICI?. 
See  Fraudulent  Conveyance,  3.     Specific  Performance,  2. 

INCREASE. 

Where  the  term  "  increase  of  slaves,"  is  used,  it  means  increase  thereafter  to  be 
produced.  Under  the  bequest  of  a  female  slave  and  her  increase,  children  of 
the  slave  born  before  the  execution  of  the  will,  do  not  pass.     Siihles  v. 

Wliutley  and  others, « GU9 

See  Tenant  for  Life,  3.     Will,  4. 

INFANT. 

1.  If  one  undertake  for  minors  his  act  will  bind  him.  although  it  may  not  them, 

and  the  contract  will  be  binding  on  the  other  party,  although  voidable  at 
the  option  of  the  minors.     Sarlirv.  Gordon 125 

2.  What  contracts  of  an  infant  are  void,  or  voidable  only.     Lester,  Adrn'r,  v. 

Fruzer,  Adm'r 540 

3.  Whatever  may  be  the  rule  as  to  executory  contracts,  it  is  clear  that  the 

executed  contract  of  an  infant  is  voidable  only,  and  only  the  infant  or  his 

legal  representatives  can  avoid  it.     Jb 511 

See  Guardian  and  W.-vrd.     Marriage  Settlement,  5,  6,  7,  8.     Specific 
Performance,  'J,  10.     Parent  and  Child. 

INJUNCTION. 

1.  PlaintiS"  advanced  money  to  a  manufacturing  company,  and  afterwards,  in 
order  to  secure  himself,  and  according  to  the  agreement  at  the  time  lie 
advanced,  took  the  outstanding  titles  to  the  lands  and  buildings  of  the 
company  to  himself  from  persons  having  the  legal  title,  it  not  being  in  the 
company,  and  gave  his  bond  to  convey  to  the  company  on  the  payment 
of  the  money.  After  the  plaintiff  had  advanced  the  money,  but  before  he 
got  titles  defendants  obtained  judgment  against  the  company,  and  the  plain- 
tiff afterwards  recovered  judgment  for  the  money  loaned,  on  which  he 
liad  the  lands  and  buildings  of  the  company  sold  by  the  sheriff,  and  became 
the  purcliaser  at  a,  sum  less  than  that  due  to  him,  and  took  a  deed  from 
the  sheriff,  paying  no  money  but  giving  his  bond  to  the  sheriff  to  indemnify 
him.  Defeudauts  brought  suit  at  law  against  the  sheriff  claiming  the  money 
on  their  senior  execution,  and  obtained  judgment,  and  was  about  to  enforce 
execution  against  him.  On  a  bill  by  the  plaintiff  it  was  held  lie  was  entitled 
to  relief,  and  defendants' judgment  at  law  against  the  sheriff  was  perpetu- 
ally enjoined.      Gist  y.  Davis  and  others, 349 

2.  On  an  applic.ition  for  an  injunction,  the  plaintiff  maj'  read  affidavits  filed 

before  the  coming  of  the  answer  in  support  of  the  bill,  or  in  contradiction 
to    the  answer  but   no  affidavits  filed  subsequently  to  the  coming  in  of 

the  answer  can  be  read.     Kinslerv.  Clarke, 620 

See  Waste,  G. 

INTEREST. 

1.  Where  one  acted  as  general  agent  in  the  management  of  another's  estate, 
with  an  understanding  that  he  should  receive  all  moneys,  defray  debts  and 
expenses,  and  if  required  before  his  death,  pay  over  the  balance,  and  if  not 


INDEX.  517 

V^^so  required,  continue  to  act  till  his  deatli,  -n-hen  the  unexpended  balance 
should  be  paid  over: — Held,  that  the  agent  is  not  liable  foi-  interest  until 
after  demand;  nor  would  using  the  money  make  him  so  liable  unless  he 
had  actually  made  interest,  or  failed  to  pay  the  debts  and  expenses,  to  the 
prejudice  of  his  principal.     Lever  y.  Lever, 1G2 

2.  An  administrator  who  is  chai-ged  with  interest  on  annual  balances,  shall 
not  be  charged  with  interest  on  the  interest  he  has  made  and  returned,  the 
party  charging  must  elect  between  the  methods  of  stating  the  accounts. 

Massey  v.  3Iassey  and  others, 497 

See  Dower,  G.     Executors  and  Administrators,  4,  G.     Limitation  of 
Estates,  1.     Parol  Evidence,  2.     Usury,  1. 

ISSUE  AT  LAW. 
When  an  issue  will  be  ordered.     Horry  ^  Trapier  v.  Glover  and  others, 525 

JUDGMENT. 

1.  The  heir  or  devisee  is  not  bound  by  a  judgment  against  the  executor  or 

administrator.      Vernon  ^-  Co.  \.  Valk  and  M'ife, 2G1 

2.  A  judgment  against  an  administrator  in  Georgia,  is  not  such  evidence  of 

indebtedness  as  will   enable  one  claiming  as  a  creditor,  to  sustain  a  bill 
here  to  set  aside  the  gifts  of  the  intestate  as  fraudulent.     King  v.  Clarke,..  G14 
See  Attachment,  1.     Estoppel,  2.     Executors  and   Administrators,  1,  28. 
Fraudulent  Conveyance,  4.     Injunction,!.     Lien,  1,3.     Recording,  2. 
Subrogation,  2.     Usury,  2.     Vendor  and  Purchaser,  2. 

JURISDICTION  OF  CHANCERY. 

1.  Equity  will  entertain  jurisdiction  of  a  bill  by  the  administratrix  to   make 

property  conveyed  in  a  voluntary  deed  of  her  intestate,  liable  to  his  debts, 
and  to  prevent  it  from  being  removed  from  the  State.  Ilargroves  and  Wife 
V.  Mcray  and  Wife, 226 

2.  A  party  who  has  lost  a  note   payable  to   bearer  although   past  due,  may 

come  into  equity  for  relief.  The  ground  of  jurisdiction  is  not  only  that 
be  may  give  indemnity  to  defendant,  but  that  he  must  swear  to  the  loss. 
Chewning  v.  Singleton, 373 

3.  Where  one  states  that  his  slaves  have  come  into  possession  of  another  who 

refuses  to  deliver  them,  he  states  a  suilicient  ground  of  equity  jurisdiction. 
Horry  and  Trapier  v.  Glover  and  others, 52i 

4.  But  if  it  should  appear  that  he  contracted  lor  slaves  generally,  with  no  view 

to  their  qualities,  or  to  any  individuals,   but  as  mere  merchandize,  the 

remedy  is  at  law.     lb 525 

2.  A  bill  may  be  sustained  here  for  the  specific  performance  of  a  contract  for 
the  sale  of  lands  in  Georgia  ;  and  defendant  was  decreed  to  pay  the 
purchase-money  on  condition  that    plaintitl"   execute  and  tender  titles  to 

be  approved  by  the  Commissioner.     Ep.  Church  of  Macon  \.  Wiley, 585 

See  Partnership,  2.     Tenant  for  Life,  1. 

LAPSE  OF  TIME. 

1.  Lapse  of  twenty  years  will  raise  the  pesumption  of  the  payment  of  a  legacy. 

Barniodl  v.  Bannvell,  Ex^or 283 

2.  A  lapse  of  nineteen  years  after  one  of  the  legatees  coming  of  age,  will  create 

such  presumption  against  him,  where  the  legacy  had  been  paid  thirty-five 
years  before  to  his  father,  and  the  executor  was  dead  and  his  estate 
administered  and  disposed  of.     Ih 234 

3.  In  no  case,  unless  aided  by  other  circumstances,  will  an  ouster  of  a  joint 

tenant  be  presumed  from  lapse  of  time,  under  a  period  of  twenty  years. 
Gray  v.  Givens 513 

4.  In  analogy  to  the  statute  of  limitations,  the  time  which  the  party  to  be 

affected  was  under  a  disability,  is  to  be  deducted  from  the  lapse  of  time 
which  is  to  raise  a  presumption  of  title  against  him.     lb 514 

YoL.  I.— 56 


518  INDEX. 

LEGACY. 

1.  After  the  assent  of  the  executor  the  title  vests  in  the  legatee,  and  the  property 

is  not  liable  in  his  hands  to  executions  subsequently  obtained  against  the 
executor.     3rMullin,  AcVmr,  \.  Brown 459 

2.  A  creditor  of  the  testator  has  the  unquestionable  right  to  pursue  a  legacy 

in  the  hands  of  a  legatee,  after  assets  in  executor's  hands  have  in  any  way 
been  exhausted.  It  might  be  different  if  he  had  stood  by  and  seen  the  ex- 
ecutor dissipating  the  assets  without  making  any  effort  to  save  himself.    lb.  462 

3.  Lands  devised  under  a  general  residuary  clause  'liable  for  debts  before  a 

specific  legacy.     lb 462 

4.  The  liability  of  a  legatee  for  testator's  debts  extends  only  to  the  legacy,  in 

specie,  he  is  not  liable  for  hire.     lb 466 

See    Annuity.     Husband   and    Wife,   6.     Limitations   Stat,    of,   7,   8. 
Parent  and  Child,  1,  2.     Will. 

LIEN. 

1.  What  estates  are  subject  to  legal  liens.     Alhlons  v.  The  Bank  241 

2.  A  contingent  remainder  is  not  subject  to  t'le  lien  of  a  judgment;   but  an 

assignment  of  it  for  a  valuable  consideration  will  be  supported  in  equity 
and  specifically  enforced,  as  an  agreement:  therefore  where  the  remainder 
man  against  whom  there  were  judgments  before  the  contingency  on  which, 
he  took  happened,  assigned  his  interest,  it  was  held,  that  the  lien  of  the 
judgments  must  be  subject  to  the  equity  of  the  assignment.     lb 242 

3.  Plaintifi'  had  a  mortgage  of  two  negroes  from  his  debtor  against  whom  there 

were  senior  executions.  Defendants  also  had  a  mortgage  of  real  estate 
junior  to  the  plaintiffs,  and  in  order  to  save  the  property  mortgaged  to  them, 
purchased  the  oldest  execution.  The  negroes  mortgaged  to  plaintiff,  and 
all  the  other  property  except  that  mortgaged  to  defendants  were  sold  under 
the  executions,  and  they  were  all  satisfied  :  the  defendants  afterwards 
foreclosed  their  mortgage  by  sale  under  the  order  of  the  Court,  the  proceeds 
remaining  in  Court.  On  a  bill  filed  by  the  plaintiff,  it  was  held  that  he  was 
entitled  to  relief  out  of  the  proceeds  of  the  property  mortgaged  to 
defendants,  to  the  extent  of  the  sales  of  the  negroes  mortgaged  to  him. I 
Gist  v.  Presdey 324 

4.  The  rule  in  equity  is,   that  an  agi'eement  in  writing  to  convey  will  bind 

the  state  and  prevail  against  subsequent  liens;  so,  too,  a  parol  contract 
ito  convey  which  has  been  performed  and  set  up  by  the  Court,  has  equal 
validity  with  a  written  covenant ;  and  the  party  entitled  to  specific  perform- 
ance may  hold  the  land  against  subsequent  judgment  creditors  of  the 
vendor.     Massey  v.  31cllwaiti  and  others 428 

5.  Defendant  assisted  a  debtor  to  remove  his  property  out  of  the  State,  with 

the  view  to  defeat  liens  existing  here  against  it,  and  to  obtain  priority 
for  himself  in  another  State:  Held,  that  this  was  such  a  fraud  as  will 
deprive  him  of  his  priority  in  the  foreign  jurisdiction ;  and  he  was  ordered 
to  account  here,  for  the  funds  received  there.     Pickett  v.  Pickett 471 

6.  The  Act  of  1791  prescribing  proceedings  in  partition  gives  a  lien  on  the  land 

for  the  purchase  money,  whether  the  sale  be  for  cash  or  on  credit.  And 
the  fact  that  the  guardian  and  Commissioner  interchanged  receipts,  will  not 
in  equity  be  regarded  as  a  payment  so  as  to  extinguish  this  security.     3Ies- 

servey  and  others  v.  Barrelli 575 

See  Agent.     Attachment,  2.    Contribution,  3.    Debtor  and  Cbeditor,  8. 
Guardian  and  Ward,  7,  8,  9. 

LIMITATION  OF  ESTATES. 

1.  Testator  directed  his  estate  to  be  sold  and  the  interest  of  the  fund  arising 
thence  to  be  paid  to  his  son  S.  annually,  and  the  principal  to  be  equally 
divided  amongst  the  lawful  issue  of  S.  as  they  came  of  age  or  married: 
"and  in  default  of  such  heirs  to  go  to  his  next  of  kin,  to  be  equally  divided 
amongst  them  at  the  death  of  S.;   S.  died  without  issue. — Held,  1.  That 


INDEX.  519 

the  limitation  over  to  the  next  of  kin,  was  not  too  remote:  2.  That  S.  was 
entitled  to  the  interest  on  the  whole  sum  annually  during  his  life;  and 
his  administrator  to  the  interest  which  accrued  in  the  year  he  died,  up  to 
the  time  of  his  death.     Dauidson  v.  Riiff. 141 

2.  A  remainder  cannot  be  limited  after  a  fee  conditional.     Deas  and   Wi/c   v. 

Horn/  and  others ." 21G 

3.  Testator  by  his  will  devised  an  estate  to  his  son,  E.  L.,  for  life,  and  at  his 

death  to  the  first  son  of  E.  L.,  and  the  heirs  of  his  body  lawfully  issuing, 
and  in  default  of  such  issue,  to  the  second,  and  every  other  son  of  E.  L. 
successively  and  in  the  order  of  birth,  and  to  the  several  heirs  of  their 
bodies  in  like  manner;  and  in  default  of  sons,  with  like  limitations  to  the 
first,  second  and  every  daughter  of  E.  L.  and  successively  in  the  order  of 
their  birth,  and  the  several  heirs  of  their  bodies,  &c.  :  and  died  in  17^."), 
leaving  one  son,  E.  L.,  and  a  daughter.  His  son,  E.  L.,  the  tenant  for  life 
had  a  son  and  three  daughters;  the  son  of  E.  L.  died  in  IT'.t?,  without 
issue,  and  his  father  in  1831: — IMd,  that  the  first  son  of  E  L.  took  a 
fee  conditional;  that  all  the  remainders  after  the  devise  to  him,  were  void; 
and  that  on  his  death,  in  1797,  the  fee  reverted  to  the  right  heirs  of  the 
testator.      Jb 247 

4.  Although  the  testator  died  before  the  Act  of  1791,  abolishing  the  right  of 

primogeniture,  the  right  must  go  to  those  who  were  heirs  at  the  time  the 
fee  conditional  determined.     lb 248 

5.  Testator  by  bis  will  devised  his  plantation  to  his  son  Charles  in  fee,  but  if  he 

shovild  die  under  age  and  without  issue,  then  to  be  kept  for  the  use  and 
maintenance  of  his  wife  and  unmarried  daughters,  and  on  marriage  to  be 
sold  and  equally  divided  between  his  wife  and  surviving  daughters.  Charles 
died  under  age,  and  without  issue  leaving  four  sisters,  the  mother  having 
died  before ;  one  sister  died  shortly  after  unmarried,  two  afterwards  married 
and  died  leaving  issue,  and  the  last  died  lately,  unmarried  :  Held,  that  the 
devise  to  Charles  was  a  fee  simple,  defeasible  on  his  death  under  age  and 
without  issue;  that  the  limitation  over  to  the  wife  and  daughters  was 
contingent,  and  must  fail,  because  at  the  event  on  which  it  was  limited 
over  there  was  none  answering  the  description  to  take;  and  that,  on  the 
death  of  Charles,  the  fee  reverted  to  testator's  right  heirs,  and  those 
answering  the  description  of  heirs  at  that  time  take.  Wdson  and  Wife  v. 
Freer  and  others d52 

6.  S.  B.  and  D.  B.  delivered  two  female  slaves  to  a  trustee  for  the  use  of  C.  P., 

and  if  C.  P.  died  without  issue,  "then  the  said  negroes  to  return  to  tlic 
sons  of  S.  &  B.  and  D.  B.  and  their  heirs  forever."  C.  P.  died  witliout 
issue  At  the  time  of  the  gift,  S.  B.  and  D.  B.  (the  donors)  had  each  one 
son  living,  and  afterwards  S.  B.  had  other  sons  who  died,  and  the  son  of 
D.  B.  died  before  the  death  of  C  P  at  whose  death  the  only  living  son  of 
either  of  the  donors  was  the  son  of  S.  P.  who  was  living  at  the  time  of  the 
gift.  This  son  recovered  the  negroes  and  their  increase  from  the  represen- 
tatives of  C.  P.  and  took  them  into  possession :  On  a  bill  by  the 
administrator  of  the  son  of  D.  B.  claiming  one-half  of  the  slaves  under 
the  gift,  it  was  held,  that  the  limitation  was  to  the  sons  of  S.  B.  and  D. 
B.  living  at  the  time  of  the  gift,  jointly,  as  if  it  had  been  to  them  by  name ; 
and  therefore  the  plaintiff  was  entitled  to  a  recovery.  M'MceMn  v.  Brummett.  68S 

7.  Where  property  is  given  by  will,  to  be  distributed  among  a  class  of  persons 

at  some  future  time,  or  on  some  future  contingency,  all  are  let  in  who  come 
into  existence  before  the  time  or  happening  of  the  event,  and  none  can  take 
but  those  then  answering  the  description ;  but  such  principle  does  not  apply 
to  a  deed  or  gift  inter  vivos.  A  will  speaks  at  the  time  of  the  testator's  death, 
and  those  who  answer  the  descriptions  of  legatees  at  the  time  will  take  unless 
a  contrary  intention  appears  but  a  deed  or  gift  speaks  at  the  tijnewhcn 
made,  and  the  donee  under  it  must  be  such  as  answers  the  description  at 
that  time.  A  future  contingent  interest  may  be  given  to  a  person  not  in 
esse,  but  the  intention  must  be  plainly  expressed ;  and  if  there  he  a  person 
to  answer  the  description  at  the  time,  it  will  never  be  applied  to  another 
afterwards  coming  into  existence  who  may  come  within  the  description. 
lb 6S9 


520  INDEX. 

8.  A  contingent  remainder  is  transmissible  to  the  personal  representative, 
when  the  existence  of  the  remainder-man  himself  at  the  time  of  the  event 
does  not  constitute  the  contingency.     M'Meekin  v  Brummett 642 

See  Appointment.     Fees  Conditional.     Will. 

LIMITATIONS,  STATUTE  OF. 

1.  The   plaintiff  had  paid  one  hundred  dollars  to   testator  in  part  price  of  a 

negro.  After  testator's  death,  six  tut  of  eight  of  the  residuary  legatees 
gave  their  bond  to  the  administrator  with  the  will  annexed,  relinquishing 
their  interest  in  the  one  hundred  dollars,  and  authorizing  the  payment  of 
their  shares  therein  to  the  plaintiff:  Held,  that  this  was  an  assignment 
of  their  interest  in  that  fund  to  the  plaintiff:  that  it  was  an  equitable  and 
not  a  legal  demand,  and  that  the  statute  of  limitations  did  not  apply  to  it. 
Sims  V.  Sims "- 

2.  If  thei-e  be   mutual  running  accounts  between  the    parties  and  any  of  the 

items  have  accrued  within  the  time  of  the  statute  of  limitations,  this 
amounts  to  an  acknowledgment  of  the  previous  account  and  a  promise  to 
pay.     Slimier,  Adm'r,  w.  Morse, •J-' 

3.  The  plaintiff,    (an  administrator,)  claimed  demands   in  hiS"  bill  against  the 

defendants  extending  down  to  a  period  within  the  statute:  and  set  forth 
that  he  as  the  agent  of  his  intestate  had  frequently  called  on  the  defendants 
and  requested  them  to  come  to  a  settlement  of  their  accounts,  and  pay  what 
upon  balancing  the  accounts  should  appear  to  be  due: — Beld,  that  this  state- 
ment of  the  bill  is  such  an  admission  of  the  previous  accounts  of  the 
defendants  as  will  prevent  the  operation  of  the  statute  of  limitations;  and 
being   made   by  his    agent   is  obligatory  on   the   estate  of  the  intestate. 

lb.. :. 93 

4.  Before  answer  filed,  it  was  agreed  between  the  parties  that  neither  should 

plead  the  statute  of  limitations  to  the  demands  of  the  other,  and  the  de- 
fendants did  not  in  their  answer,  or  on  the  reference,  urge  that  plea;  the 
plaintiff  will  not  afterwards  be  permitted  to  plead  the  statute.     lb 93 

5.  Generally  an  executor  or  administrator  may  or  may  not  plead  the  statute 

of  limitations:  the  only  exception  is  when  the  demand  is  in  whole  or  in 
part  due  to  himself,  in  which  case  the  legatees  or  distributees  have  been 
permitted  to  plead  it  when  he  had  not:  but  when  the  administrator  is 
the  sole  distributee,  his  agreement  not  to  plead  the  statute  has  every  pos- 
sible legal  and  equitable  sanction.     lb 94 

6.  When  a  trustee  does  an  act  importing  a  tei'mination  of  the  trust,  as  a  final 

settlement,  the  statute  of  limitations  will  run  from  that  time  but  a  payment 
to  the  father  of  the  cestui  que  trusts  who  had  no  authority  to  receive,  is  not 
to  be  regarded  as  such  a  termination  of  the  trust  as  will  allow  the  statute 
to  run  from  that  time.     Barnwell  v.  Barnwell,  Ex^or 232 

7.  The  statute  of  limitations  will  not  run  so  as  to  protect  a  legatee  against  his 

liability  for  testator's  debts,  until  after  the  remedy  has  been  exhausted 
against  the  executor. — No  cause  of  action  accrued  against  him  until  then. 
M'Mullin,  Adm'r,  v.  Brown 4GI 

8.  If  a  creditor  is  guilty  of  neglect  in  prosecuting  his    demand  against  the 

executor,  the  legatee  will  be  protected  by  the  statute  of  limitations.  {Ob.  Dec.) 

lb 467 

9.  On  a  bill  by  an  administrator  against    a  distributee  and  her  guardian   to 

have  money  refunded  which  was  paid  by  mistake  to  the  guardian  more  than 
four  years  before  the  filing  of  the  bill,  but  paid  over  by  him  to  the  ward 
within  that  time,  it  was  held,  that  the  ward  might  protect  herself  by  the 
statute  of  limitations,  although  not  pleaded  by  the  guardian,  especially  as 
the  guardian  had  paid  over  all  the  funds  received  before  notice  of  the 
mistake  which  discharged  him  from  liability.     Massey  v.  Massey  and  others.  496 

LOST  NOTES. 
See  Jurisdiction  of  Chancery,  2. 


INDEX.  521 

MARRIAGE    SETTLEMENT. 

1.  Contracts    in   consideration  of  marriage,  are  greatly  favored  in    Chancery, 

and  as  between  the  parties  themselves,  and  others  falling  within  the  express 
objects  of  the  contract,  they  will  be  enforced  according  to  the  obvious  intent, 
however  informally  or  irregularly  they  may  have  been  executed  ;  and  that, 
too,  although  they  may  have  been  rendered  inoperative  at  law  by  the  inter- 
marriage of  the  parties.     Ex' or  of  Allen  \.  Rinnph  and  others 3 

2.  In  contemplation  of  marriage,   defendant  executed  a  deed,  in  whicli,  after 

reciting  the  intended  marriage,  he  conveyed,  directly  and  without  the  inter- 
vention of  a  trustee,  to  bis  intended  wife,  "all  the  estate  which  she  was 
entitled  to  of  her  first  husb.md,"  consisting  of  slaves  and  other  personaltv, 
to  her,  "her heirs,  administrators  and  assigns."  The  marriage  was  after- 
wards solemnized,  the  defendant  and  his  wife  went  into  possession  of  the 
property.  After  the  death  of  the  wife  without  issue  of  that  marriarre,  on  a 
bill  filed  by  a  son  of  the  wife's  first  marriage,  it  was  held  that,  in  ICquitv, 
the  deed  will  be  regarded  as  a  marriage  settlement  in  trust  for  the  wife  and 
her  heirs  at  law  ;  that  the  marital  rights  of  the  husband  would  not  uttach, 
and  consequently  that  he  took  only  his  distributive  share  as  heir  at  law 
lb 

3.  The  Act  of  1792,  1   Faust,  200,  requires  all  marriage  contracts,  &c.,   &c., 

to  particularize  the  property  intended  to  be  settled,  or  to  have  a  schedule 
of  the  same  annexed:  a  description  of  the  property  in  a  marriage  settle- 
ment as  that  to  which  the  wife  "is  entitled  under  the  will  of  her  husband 
J.  A.  or  to  which  she  may  be  entitled  independent  of  the  will,"  is  not  a 
compliance  with  the  act,  and  the  settlement  is  void  as  to  the  creditors  of 
the  husband  subsequent  to  the  marriage.     lb 5 

4.  It  is  indispensaibly  necessary  by  the  Act  of  1792,  that  a  marriage  contract 

should  specify  the  property  intended  to  be  settled,  or  have  a  schedule 
annexed  containing  a  description  thereof,  which  scheilule  must  be  signed 
and  subscribed  by  the  witnesses  to  the  contract:  and  therefore,  when  a 
marriage  contract  was  signed  with  a  schedule  annexed,  which  was  neither 
signed  nor  witnessed,  and  they  were  recorded  within  the  legal  period;  and 
in  conformity  to  the  contract,  a  settlement  was  afterwards  entered  into, 
which  was  not  recorded  until  after  the  time  prescribed  by  law,  it  was  held, 
that  the  contract  and  schedule  were  not  a  compliance  with  the  act,  and  the 
settlement  not  being  recorded  in  due  time,  the  property  was  liable  to  the 
debts  of  the  husband  subsequent  to  marriage.  McCartney  and  Gordon  v. 
Fogwn  and  Wife 181 

5.  Where  a  female  infant  before  marriage  entered  into  a  settlement  by  which 

she  conveyed  her  real  estate  to  the  uses  of  the  marriage  and  the  issue  there- 
of, and  died  during  infancy,  leaving  a  son  who  lived  eleven  years  after 
attaining  full  age,  without  calling  the  settlement  in  question,  and  died 
leaving  issue ;  on  a  bill  by  the  creditors  of  the  son  to  charge  the  real  estate 
derived  from  the  mother  with  the  payment  of  his  debts,  on  the  ground,  that 
the  settlement  was  void,  being  made  by  the  mother  while  an  infant : — lldd, 
that  at  most  the  settlement  could  only  be  regarded  as  voidable,  and  no 
election  having  been  made  to  avoid  it,  the  creditors  had  no  right  to  inter- 
fere, and  the  bill  was  dismissed.     Lester,  Adm'x,  v.  Frazcr,  Adm'r, 537 

6.  The  question  whether  a  female  infant  is  bound  by  marriage  articles,  by 

which  her  own  real  estate  is  settled  to  the  uses  of  the  marriage  discussed, 
and  the  English  cases  considered.     lb 538 

7.  In  England  while  it  has  been  held  that  an  infant  wife  who  had  accepted  a 

jointure  was  barred  of  dower  under  the  stat.  Hen.  8,  it  seems  to  be  settled 
she  is  not  bound  by  a  settlement  before  marriage  disposing  of  her  own  real 
estate.    lb 538 

8  Regarding  the  point  settled  in  England,  it  becomes  a  question,  how  far  we 
are  bound  by  it,  considering  the  difference  in  our  circumstances,  habits  and 
institutions.     lb 539 

9.  The  registry  acts  requiring  marriage  settlements  to  be  recorded,  &c.,  apply 
only  to  settlements  founded  on  the  consideration  of  marriage  and  entered 
into  before  marriage,  or  afterwards  in  pursuance  of  articles  before,  and 


522  INDEX. 

to  voluntary  conveyances  by  the  husband  to  the  wife.  A  settlement  by 
the  husband  after  marriage  in  consideration  of  his  wife's  renunciation  of 
inheritance  in  her  real  estate,  need  not  be  recorded  as  a  marriage  settle- 
ment.  Banks  ■^.  Brown  and  others, "65 

10.  And  the  same  reasons  apply  to  and  will  sustain  a  deed  of  a  house  and  lot 
purchased  by  funds  derived  from  the  estate  of  the  wife's  father,  no  provis- 
ion having  previously  been  made  for  her  ;  and  to  another  deed  by  the 
husband  settling  other  slaves  on  her,  expressed  to  be  in  consideration  of 
her  renunciation  of  inheritance.    lb 566 

11.  The  husband,  may  not  make  an  unreasonable  settlement  on  his  wife  to 
defraud  his  creditors — a  settlement  of  less  than  one-half  the  value  of  the 
fortune  he  acquired  by  his  wife,  is  not  an  unreasonable  provision.    lb.......  566 

See  Husband  and  Wife,  10,  11,  VI,  13,  17,  25. 

MISTAKE. 

Guardian  not  liable  for  money  paid  to  him  by  mistake,  after  he  had  paid  it  over 

to  his  ward  without  notice.     Massey  v.  Mas&ey  and  others 496 

See  Agent.     Bond. 

MORTGAGE. 

1.  An  endorsement  on  a  ship's  register  at  the  time  of  sale,  that  "the  vessel 

should  not  be  sold  until  the  notes  given  for  the  purchase  money  were 
paid,"  constitutes  an  equitable  mortgage,  especially  when  the  ship's 
register  was  left  with  the  vendor.      ^Yclsh■sr.  Usher  and  others, 170 

2.  AVhere  mortgaged  negroes  were,  by  an  agreement  endorsed  on  the  mortgagee, 

left  in  possession  of  the  mortgagee,  and  to  continue  there  in  lieu  of  interest 
until  the  debt  is  paid,  no  length  of  time  will  bar  the  right  of  redemption. 
Wurtz  v.    Thyms 178 

3.  A  mortgagee  of  personalty  does  not  fall  within  the  principle  which  prevents 

a  trustee  to  sell  from  buj'ing  at  his  own  sale  ;  but  he  holds  such  a  trust 
character  as  to  throw  the  burden  on  him  of  showing  the  fairness  of  his  pur- 
chase. Black  V.  Hair  and  Black 623 

See  DowEii,  5.    Fraudulent  Conveyance,  7,  8.    Guardian  and  Ward,  7, 
8,  0.    Lien,  2.    Recording,  2.    Usury,  1. 

OR. 

Construed  "and."     Edwards  \.  Barksdale, 195 

1.  The  Act  of  1824,  authorizing  Ordinaries  to  make  partition  of  real  estate  not 

exceeding  in  value  one  thousand  dollars,  applies  only  where  the  entire 
estate,  in  how  many  districts  soever  situated,  does  not  exceed  that  amount. 
Kidgel  v.  Bethea -366 

2.  If  the  Ordinary  should  be  deceived  as  to  the  value,  the  title  of  a  bona  fide  pur- 

chaser will  not  be  aS'ected;  but  tiie  facts  should  appear  in  his  proceedings, 
and  if  it  thus  appears  that  he  did  not  inquire  as  to  the  value  of  the  entire 
estate,  or  that  it  exceeded  one  thousand  dollars,  his  proceedings  are  void. 
lb 366 

See  Executors  and  Administrators,  26. 

OUSTER. 
See  Lapse  of  Time,  3. 

NEXT  OF  KIN. 
Under  the  statute  of  distributions,  first  cousins  of  the  whole  and  half  blood  are 
next  of  kin  in  equal    degree,  and   equally  entitled  to  the  estate  of   the 
intestate.     Edwards  y.  Barksdale 417 

PARENT  AND  CHILD. 
1.  A  father,  as  such,  has  no  right  to  receive  a  legacy  to  his  child:  and  therefore 


INDEX.  523 

where  an  executor  p.aid  a  legacy  to  the  father  of  an  infjint  legatee,  and 
afterwai-ds,  on  the  demand  of  the  legatee's  guardian,  his  co-executor  paid  it 
to  the  guardian,  the  last  payment  was  held  proper  and  that  the  executor  who 
made  the  first,  was  liable  to  the  estate  for  his  improper  payment.  Admin- 
istrators of  Johnson  v.  Executors  of  Johnson 288 

2.  Nor  will  the  fact  that  the  father  of  the  legatee  was  a  co-executor  be  an 

excuse ;  for  although  executors  are  primarily  regarded  as  only  separately 
liable,  yet,  if  they  concur  in  any  act  touching  the  estate,  they  are  jointly 
liable.  lb 288 

3.  One  having  a  lawful  wife  and  children,  separated  from  them,  and  lived  in  a 

state  of  adultery  with  a  woman  by  whom  he  had  several  illegitimate  cliild- 
ren,  and  with  the  proceeds  of  their  labor  purchased  lands,  and  had  the  con- 
veyances executed  to  the  natural  children  :  Held,  that  the  father  might 
permit  his  natural  children  to  receive  the  profits  of  their  labor  and  might 
invest  those  profits  for  them  ;  and  that  such  investment  was  no  violation 
of  the  Act  of  ]79o,  prohibiting  gifts  and  conveyances,  exceeding  one-fourth 
of  his  estate,  by  a  man  having  a  wife  or  children,  to  a  woman  with 
whom  he  lives  in  adultery,  or  his  illegitimate  children.  Kinj  and  others  v. 
Johnson  and  others, 626 

PAROL  EVIDENCE. 

1.  Parol  evidence  is  inadmissible  to  explain  a  will  except  in  a  case  of  latent 

ambiguity.   Pattersons.  Leith,  Ex'or 16 

2.  Parol  evidence  admissible  to  lebut  an  equity  against  executors  arising  out 

of  their  obligations  to  vest  funds  so  as  to  make  interest.     (See  S.  C.  1 

Hill  Ch.   122'.)  Chesnut  and  Wife\.  Strong, Ex'or 149 

See  Deed,  2.     Guardian  and  Ward,  4. 

PARTIES. 

1.  Funds  being  in  possession  of  the  Court  (or  subject  to  its  order),  the  Court 

ordered  notice  to  be  published  for  creditors  to  come  in  and  establish  their 
claims  in  opposition  to  one  of  the  defendants,  who  claimed  it  as  a  principal 
creditor : — Held,  that  all  the  creditors  who  came  in  under  the  order  were 
rightly  in  Court,  properly  parties  to  the  case,  and  bound  by  the  proceed- 
ings: and  an  oi-der  of  the  Chancellor  requiring  them  to  file  a  cross  bill,  on 
order  to  establish  their  demands,  reversed.  Chestnut  v.  Champion  and 
others, 84 

2.  In  a  contest  between  creditors  for  a  trust  fund   in  the  possession  of  the 

Court,  the  executrix  of  the  deceased  debtor  is  not  a  necessary  party.     lb.     87 

3.  Qu?    Can  a   bill  against  a  devisee    to  charge   the   devised   estate,  be   sus- 

tained without  making  the  heir-at-law  a  party?      Vermon  and  Co.  v.   Valk 

and  Wife, 262 

See  Assets.     Husband  and  Wife,  7. 

PARTITION. 

See  Commissioner's  Report.     Guardian  and  Ward,  7,  9.     Husband  and 
Wife,  26,  28.     Lien,  5.     Ordinary,  1,  2.     Waste,  1. 

PARTNERSHIP. 

1.  It  is  a  rule  as  well  of  equity  as  law,  that  a  party  claiming  under  a  contract 

with  mutual  stipulations,  must  show  either  that  he  has  performed  his 
part,  or  some  legal  excuse  for  not  performing:  and  therefore,  held,  that  a 
partner  who  contributed  his  proportion  according  to  the  articles,  for  only 
three  years  of  the  ten  or  which  the  partnership  was  to  continue,  the  other 
partner  conducting  the  business  afterwards  on  his  own  means,'  was  not 
entitled  to  an  account  for  the  profits,  except  for  the  three  years.  Kinloch, 
Ex'or,  V.  Hamlin 1" 

2,  Partners  may  sue  each  other  at  law  for  the  breach  of  any  distinct  engage- 


524  INDEX. 

/ 
ment  in  the  partnership  agreement;  and  generally,  adequate  relief  may 
in  such  cases  he  thus  obtained :  and  where  this  can  be  done,  equity  will 
not  entertain  a  bill  sole'y  for  the  breach  of  such  an  engagement.      Kinloch, 

Ex' or,  T.  Ilamlin 20 

3.  The  question  considered  whether  owning  a  ship  employed  in  trade,  by 
several  in  distinct  shares,  constitutes  a  partnership.  Ch.  De  Saussure's 
opinion,  that  this  is  a  partnership,  and  carries  with  it  all  its  legal  inci- 
dents.    Seabrook  y.  Rose 555 

See  Commissions,  4. 

PAYMENT. 

See  Bond  Debt,  2.     Commissioner's  Report.     Husband  and  Wife,  5,  6,  28. 
Lapse  of  Time,  1,  2.     Lien,  5.     Parent  and  Child,  1,  2. 

PLANTATION. 

What  passes  under  a  devise  of.     Nash  v.  Savage  ^  Nash,  Ex'ors 50 

See  Will,  3,  8. 

PLEADING. 

1.  If  it  appear  on  the  face  of  a  bill,  that  it  was  prematurely  filed, 'and  advan- 

tage be  taken  by  demurrer,  it  will  be  fata!;  but  if  there  be  no  demurrer, 
and  the  case  be  not  brought  to  a  hearing  till  after  the  time  fixed  for  the 
performance  of  the  contract,  the  Court  will  not  then  dismiss  the  bill,  but 
give  leave  to  amend  on  terms.  A  bill  may  properly  be  filed  to  prevent  the 
sale  of  slaves  before  the  time  fi.^ed  in  the  contract  of  sale  for  their  delivery; 
and  then  it  is  proper,  to  prevent  multiplicity  of  suits,  that  all  matters  in 
controversy  be  brought  forward.  Saner  arid  Wife,  and  others,  v.  Gordon, 
Adm'r 137 

2.  That  a  former  decree  should  be  a  bar  to  another  bill,  it  must  appear  that 

the  rights  of  the  parties  were  considered  and  adjudged  ;  therefore,  where 
the  plaintiff  in  the  first  bill  did  not  show  any  interest  or  liability  which 
required  the  aid  or  interference  of  the  Court,  and  on  that  ground  his  bill 
Avas  dismissed,  but  in  his  new  bill  set  out  his  liability  on  a  bond  of  indem- 
nity connecting  him  in  interest  with  the  parties  litigant:  Held,  that  the 
former  decree  was  not  a  bar  to  the  new  bill.      Gist  v.  Davis  and  others 342 

3.  Irregularities  in  form,  cannot  be  taken  advantage  of  after  answering  to  the 

merits  of  the  bill.     Messervey  and  others  \.  Barelli, 583 

See  Decree,  1,  2,  3. 

POWER. 

Testator  by  his  will,  after  a  specific  bequest  gives  the  residue  to  his  wife  for 
life,  and  at  her  death  "  to  the  nieces  of  my  wife,  in  such  manner  and  at 
such  time  as  my  said  wife  shall  think  proper." — Held,  that  the  power  of 
disposing  was  not  given  to  the  wife  ;  that  she  had  no  right  to  divest  thc 
legacies  so  given,  nor  to  disturb  the  equality  of  the  portions  which  the 
will  vested  in  the  nieces,  but  merely  to  fix  on  the  time  and  manner  of  enjoy- 
ment;  and  that  a  niece  of  the  husband  not  being  within  the  description  of 
those  named  in  the  will,  could  not  take  by  the  appointment  of  the  wife. 
Seibcls  v.  Whatley  and  others, 608 

PRACTICE. 

1.  Order  of  the  Chancellor  quashing  the  reports  of  a  former  Commissioner  on 
claims  of  creditors,  because  it  did  not  appear  that  before  making  them  up 
he  had  given  the  parties  notice,  or  an  opportunity  afterwards  to  contest 
them  reversed.  In  the  absence  of  proof,  it  will  be  presumed  that  the 
Commissioner  had  done  his  duty  and  given  due  notice;  but  under  the 
circumstances,  the  reports  referred  back  to  the  present  Commissioner, 
with  instructions  to  regard  them  as  jjrima  facie  evidence  in  favor  of  the 


INDEX.  525 

claims  reported,  but  with  leave  to  falsify  tbcm  by  proof.  Chestnut  v. 
Champion  and  others, 85 

2.  Decretal  orders,  when  they  may  be  suspended.     Spann  ^-  Jennings  v.  Spann,   Ib'i 

3.  Although  a  Chancellor  has  no  authority  to  set  aside  a  previous  order  of 

Court,  final  in  its  nature,  he  may,  either  in  the  Court  or  at  chambers, 
suspend  its  execution,  on  the  ground  of  subsequent  matter  that  would 
i-ender  its  execution  oppressive  or  iniquitous.     lb 156 

4.  A  bill  by  trustees  to  marshal  assets  and  calling  in  creditors,  after  decree 

made,  directing  money  to  be  paid  in  and  creditor's  claims  established,  will 
not  be  dismissed  at  the  instance  of  one  of  the  plaintiffs,  his  co-plaintiff 

and  the  creditors  objecting.     Muldrow  ^  Bruce  v.  Dabose  and  others, 377 

See  Decree,  1.     Injunction,  2.     Issue.     Parties,  1.     Rehearing. 

PREFERENCE  OF  CREDITORS. 
See  Debtor  and  Creditor.     Fraudulent  Conveyance,  10.     Subrogation,  1. 

PREROGATIVE. 
See  Debtor  and  Creditor,  1. 

RECEIPT. 

A  receipt  by  a  legatee  to  the  administrator  with  the  will  annexed  for  his  divi- 
dend of  the  estate,  applies  only  to  his  share  under  the  will,  and  does  not 
preclude  him  from  recovering  a  fund  which  the  other  legatees  assigned  to 

him.     Sims  y.  Sims,  Adm'r 62 

»     See  Husband  and  Wife,  26.     Lien,  6. 

RECORDING. 

1.  Under  the  Act  of  1698,  (P.  L.  3  )  a  deed  recorded,  although  not  within  sis 

months,  (as  required  by  the 'Act  of  1785,)  acquires  preference  over  a 
prior  unrecorded  mortgage.    Barmcell  and  others  y.  Porleus  and  others 220 

2.  A   junior   judgment    creditor    is  not,  under  the  Act  of   1785,   entitled  to 

preference  over  an  unrecorded  mortgage.     lb 221 

See  Emancipation  of  Slaves,  3.    Husband  and  Wife,  13,  14,  20.    Marriage 
Settlement,  4,  9,  10. 

RE-HEARING  (PETITION  FOR),  AND  BILLS  OF  REVIEW. 

1.  On  what  grounds  motions  for  re-hearings  or  bills  of  review,  will  be  granted. 

The  cases  on  the  subject  reviewed.     Hinson,  AdrnW,  v.  Pickett 353 

2.  A  rehearing  will  not  be  granted  on  the  ground  of  newly  procured  evidence 

which  would  have  materially  varied  the  case  on  trial,  it  must  appear  that 
the  evidence  was  discovered  since  the  decree,  and  of  which  the  party  could 
not  have  had  the  benefit  in  the  first  instance.  Motion  for  re-hearing 
refused,  where  it  appeared  that  the  party  knew  of  the  evidence  before  trial, 
and  could  by  proper  diligence  have  procured  it.    lb 357 

3.  Rule  laid  down  that  a  rehearing  in  Chancery  will  not  be  granted,  on  the 

ground  of  after-discovered  oral  evidence,     lb 359 

REIMBURSEMENT. 

In  decreeing  partition  of  slaves  recovered  by  defendant  in  a  former  suit,  from  a 
third  person,  the  defendant  was  allowed  reimbursement  for  the  expenses 
incurred,  in  proportion  to  the  plaintiff's  interest.     iVMeekin  v.  Brummet...  643 

RELEASE. 

A  release  given  by  a- weak  man,  to  his  general  agent  on  final  settlement,  under 
the  circumstances  sustained  in  bar  to  a  bill  for  an  account.  Wurtz  v. 
Thynes 174 


526  INDEX. 

RENTS  AND  PROFITS. 
See  Decree,  2.    Guardian  and  Ward,  6.    Hire,  1,  2.    Husband  and  Wife,  23,  24. 

SHERIFF'S  SALE. 

1.  Purchaser  at  sheriff's  sale  Bot  allowed  the  protection  of  an  execution  under 

which  the  land  was  not  sold.     Massey  v.  M'llwain 425 

2.  Where  land  was  sold  under  execution  as  the  property  of  one  who  had  the 

legal  title,  but  under  a  parol  contract  which  had  been  performed  was  bound 
to  convey  to  the  plaintiff,  the  purchaser  is  invested  with  all  the  rights  of  the 
judgment  creditors  at  whose  instance  the  land  was  sold,  and  want  of  notice 
to  them  of  the  plaintiff's  equity  may  protect  him;  but  it  seems  that  the  pos- 
session of  the  land  by  the  plaintiff  would  be  sufficient  notice  to  creditors. 
lb 427 

3.  Shei'iff's  sale  to  defendant  set  aside,  where  the  defendant,  with  a  knowledge 

that  the  sheriff  had  agreed  to  postpone  the  sale,  urged  him  to  sell  when  the 
crowd   had  dispersed,  and  then  purchased  himself  at  a  great  sacrifice. 

Pickett  V  Pickett .,  471 

See  Injunction,  1. 

SLAVES. 

1.  The  common  law  doctrine  of  villenage,  does  not  apply  to   the  condition  of 

slavery  here.     Fabler.  Brown,  Ex' or 390 

2.  The  status  of  our  slaves  ascertained  by  reference  to  what  was  anciently  held 

to  be  the  condition  and  disabilities  of  alien  enemies  and  Pagans,     lb 392 

3.  The  anomalies  in  the  condition  of  our  slaves  referable  to  our  own  legislation. 

lb ; 395 

4.  A  slave  being  a  personal  chattel,  is  incapable   of  holding  property  in  his 

own  right,  and  the  possession  and  title  must  be  referred  to  his  master,    lb.  396 

5.  Where  a  testator  directed  his  executor  out  of  the  funds  of  his  estate  to 

purchase  a  slave,  (his  son,) — Held  to  be  an  attempt  to  evade  the  law  against 
emancipation,  and  if  purchased,  the  slave  would  become  part  of  the  estate. 

lb 399 

G.  Applying  the  doctrine  in  respect  to  alien  enemies  to  the  condition  of  our 
slaves,  it  was  held :  that  as  an  alien  enemy  may  take  lands  but  cannot  hold ; 
and  as  a  chose  in  action  given  to  him  is  not  void,  although  he  cannot 
maintain  an  action  on  it:  so  a  slave  may  take,  but  cannot  hold  land,  and 
his  master  could  only  hold  until  oflBce  found  for  the  State  ;  and  so  of  a 
legacy  given  to  a  slave  it  is  not  void,  but  it  cannot  be  recovered  from  the 
executor  by  either  slave  or  master,  but  may  escheat  to  the  State  in  the 
hands  of  the  executor.  Therefore  where  testator  by  his  will  gave  his  estate 
to  his  children  who  were  slaves,  a  bill  filed  by  the  next  of  kin  against  the 

executor  was  dismissed,     lb 400 

See  Emancipation  of  Slaves.  Evidence,  7,  8.  Increase.  Jurisdiction 
OF  Chancery,  8,  4.  Specific  Performance,  1,  4,  6,  7,  8.  Tenant  for, 
Life,  1,  2,  6,  7. 

SPECIFIC  PERFORMANCE. 

1.  Specific  performance  of  an  agreement  for  the  sale  of  slaves  decreed.     Barter 

and  Wife  and  others  \.  Gordon,  Adm'r 121 

2.  Inadequacy    of  price,   unaccompanied  with    circumstances   of   fraud,    not 

sufficient  to  prevent  enforcement  of  a  contract,     lb ^  126 

3.  Time,  when  not  of  the  essence  of  the  contract,  no  excuse  for  nonperformance 

unless  it  amount  to  an  abandonment,     lb 126 

4.  It  is  a  general  rule  that  specific  performance  will  not  be  decreed  of  contracts 

for  personal  chattels.  Exceptions  where  property  is  of  a  peculiar 
character:  Domestic  servants,  or  those  brought  up  in  a  family,  come  within 
the  reasons  of  the  exceptions.    lb 126 

5.  General  principles  on  which  specific  performance  of  contracts  is  decreed,  and 

the  cases  on  the  subject  considered,     lb 133 


INDEX.  527 

G.  The  general  principle  is  that  any  fair  and  reasonable  contract  will  be  enforced 
specifically,  unless  it  appears  that  full  justice  may  be  done  by  a  compen- 
sation in  damages.  In  .«ome  cases  of  contracts  for  slaves,  damages  would 
not  be  a  sufficient  compensation.  Sarler  and  tcifc  anil  others  v.  Gordon, 
Adm'r 135 

7.  According  to  the  principle  of  all  the  cases,  a  bill  may  be  maintained  for 

slaves  brought  up  in  a  family:  and  it  may  be  laid  down  as  a  general  rule 
that  a  bill  will  lie  for  the  specifiic  delivery  of  slaves,  as  for  the  specitic 
performance  of  a  contract  for  the  sale  of  laud.     lb 136 

8.  There  may  be  exceptions  to  the  rule — as  if  the  purchaser  contracted  for  the 

slaves  as  merchandise,  intending  to  sell  again;  in  such  case,  justice  would 

be  done  by  damages.    Cut  this  is  not  generally  so,  or  to  be  presumed.    76.   137 

9.  Any  one  offering  to  perform  a  contract  on  behalf  of  infants  is  their  agent, 

and  his  ofi'er  will  be  sufficient  to  compel  performance  by  the  other  party. 

Il> 138 

10.  In  a  contract  with  the  father  for  the  benefit  of  his  infant  children,  there  is 
not  such  want  of  mutuality  as  will  exonerate  the  other  party  from  per- 
formance,    lb , 139 

11.  Specific  performance  of  contracts  for  leases  has,  in  some  cases,  been  refused 
on  the  ground  of  the  insolvency  of  the  tenant;  different  on  a  contract  to 
purchase — for  there  the  Court  will  not  decree  title  to  be  made  until  the 
money  is  paid.     lb 140 

12.  The  contract  sought  to  be  enforced  being  certain,  it  will  not  be  affected 
by  any  uncertainty  in  another  separate  contract  for  a  different  matter, 
contained  in  the  same  instrument.     lb 140 

13.  One  who  has  paid  the  purchase-money,  taken  possession  and  made  improve- 
ments under  a  parol  contract  for  the  purchase  of  land,  entitled  to  specific 

.  performance.  '  JIas.sei/  w.  M'llwain, 426 

See  JuiusDicTiON  of  Ciianceky,  5.     Sheriff  Sale,  2. 

STATUTE. 

When  a  statute  authorizes  a  proceedingnot  before  allowed  bylaw,  and  prescribes 
the  mode  in  which  it  shall  be  done,  the  mode  pointed  out  must  be  strictly 
pursued,  or  the  proceeding  will  be  void :  but  when  a  proceeding  is  permitted 
by  the  general  law,  and  a  statute  directs  a  particular  form  in  which  it  shall 
thereafter  be  conducted,  it  will  depend  on  the  terms  of  the  statute  whether 
it  is  merely  directory  subjecting  the  parties  to  some  disability  if  it  be  not 
complied  with,  or  shall  render  the  proceeding  void.  Monk,  Adm'r,  v.  Jenk- 
ins, Ex'triz 1- 

SUBROGATION. 

1.  A  surety  to  a  custom  house  bond  having  paid  it,  is  not  entitled,  under  the 

Acts  of  Congress  of  '97  and  '99,  to  be  subrogated  to  the  rights  of  the  United 
States  as  against  his  co-surety,  so  as  to  give  his  demand  for  contribution  a 
preference  over  other  creditors;  nor  on  the  general  principles  of  equity 
can  he  claim  to  stand  in  the  place  of  the  United  States  as  against  the  co- 
surety.    Bank  v.  Adgcr, :.......   1.66 

2.  Joint  judgment  against  principal  and  sureties  paid  by  one  of  the  sureties, 

will  not  be  set  up  for  contribution  against  the  co-surety.     lb 267 

SURETY. 

^  See  Guardian  and  Ward,  5.     Subrog.^tion. 

SURVIVORSHIP. 
The  right  of  survivorship   in  joint  tenancy  of  both  personal  and  real  estate, 

taken  away  by  the  Act  of  1791.     JI'Meekiny.  Brummel ' 643 

TENANT  BY  THE  CURTESY. 
See  Husband  and  Wife,  22.     Improvements,  1. 


528  INDEX. 

TENANT  FOR  LIFE. 

1.  The  remaimler-maa  may  sustain  a  bill  against  the  representatives  of  the 

tenant  for  life  for  the  specific  delivery  of  slaves.  Horry  and  Trapier  v. 
Glover  and  Others 516 

2.  The  tenant  for  life  of  slaves  as  a  trustee  for  the~ remainder-man  is  bound  to 

account,  and  the  burthen  of  proof  to  show  the  increase  or  diminution  is 
thrown  on  him;  and  in  default  of  accounting,  he  shall  be  charged  with  the 
value  of  such  number  as  the  original  stock  may  reasonably  be  supposed  to 
have  increased  ;  subject,  however,  to  evidence  of  peculiar  circumstances, 
accident'or  mortality.     lb 520 

3.  A  specific  bequest  of  property  strictly  consumable  in  the  use,  such  as  corn, 

wine,  &c.,  gives  the  absolute  property,  but  of  a  flock  or  herd  which  is 
capable  of  increase,  the  tenant  for  life  taking  the  increase  is  bound  to 
keep  up  the  number  of  the  original  stock.  lb 521 

4.  The  estate  of  tenant  for  life  having  been  divided  before  administration,  refer- 

ence ordered  to  ascertain  if  sufficient  property  came  into  the  hands  of  her 
son,  so  as  to  make  his  estate  chargeable  for  the  stock,  &c.     Ih 521 

5.  Limitations  of  the  trusts  of  personalty  are  the  creatures  of  equity,  and  it  is 

by  regarding  the  tenant  for  life  as  a  trustee  for  the  remainder-man  that 
equity  takes  jurisdiction  to  compel  the  execution  of  the  trust  to  the  remain- 
der-man. And  not  only  the  personal  representative  of  the  tenant  for  life, 
but  every  volunteer  and  purchaser  with  notice,  are  bound  by  the  trust,  lb.  523 

6.  According  to  the  general  rule  laid  down  in  Sarter  vs.  GordDn,  that  a  bill  will 

lie  for  specific  delivery  of  slaves,  the  remainder-man  may  sustain  a  bill 
against  the  representatives  of  a  tenant  for  life,  or  volunteers  under  her,  to 
compel  delivery  of  slaves  bequeathed  to  hira.     Ih 523 

7.  Tlie  general  rule  is,  that  if  a  trustee  wrongfully  refuses  to  deliver  on  demand, 

he  is  liable  if  the  property  afterwards  perishes  :   and  therefore,  defendant, 
claiming  as  a  volunteer  under-tenant  for  life,  was  held  liable  to  remainder- 
man for  slaves,  who  died  since  the  filing  of  the  bill  to  compel  delivery.    lb.  523 
See  AVaste,  4,  5. 

TRUST. 

What  acts  will  estop  a  party  from  setting  up  a  resulting  trust.     Thompson  and 

Wife  V.  Murray  and  Wife 210 

See  Will,  10. 

TRUSTEE. 

See  Account.  Executors  and  Administrators,  15,  IG,  17,  18,  19,  20,  22.  Hus- 
band AND  Wife,  8.  Limitations,  Stat,  of,  G.  Mortgage,  3.  Tenant  fob 
Life,  2,  5,  7.     Will,  1 0. 

USERY. 

1.  An  agreement  by  which  negroes  mortgaged  were  left  in  possession  of  the 

mortgagee  in  lieu  of  interest,  is  not  usurious,  unless  the  value  of  the  hire 
so  far  exceed  the  interest  as  to  manifest  a  corrupt  intention.  Wurlz  v. 
Thynes, 179 

2.  On  a  bill  filed  by  one  judgment  creditor  against  another  to  set  aside  a  sheriff's 

sale  of  debtor's  property  as  fraudulent,  and  to  recover  funds  which  defend- 
ant had  fraudulently  obtained,  it  was  held  by  a  majority  of  the  Court,  that 
the^  defendant  could  not  avail  himself  of  usury  in  the  original  cause  of 
action  on  which  the  plaintiff's  judgment  was  founded.  Ch.  Harper,  and 
Js.  Gantt  and  O'Neall,  dissenting.     Picketty.  Pickett 473 

VENDOR  AND  PURCHASER. 

1.  One  purchasing  land,  to  which  another  has  an  equitable  title,  with  notice 
of  the  equity,  takes  subject  to  the  equity,  and  is  bound  to  convey  in  like 
manner  as  the  person  from  whom  he  purchased.     Massey  v.  M'llwain 426 


INDEX.  529 

2.  In  equity,  an  agreement  in  writing  to  convey,  will  bind  the  estate  and 
prevail  against  subsequent  liens  on  the  vendor's  property  ;  and  a  parol 
contract  to  convey  which  has  been  performed  by  the  purchaser,  lias  e(]ual 
validity  and  will  prevail  against  subsequent  judgments  against  the  vendor. 
Massey  v.  M'llwain 428 

See  Agent.     Mortgage,  1,3.     Sheriff's  Sale,  2,  3. 

WAIVER. 

Where  parties  claiming  under  the  limitations  of  a  deed  obscure  and  doubtful 
in  its  terms,  had  submitted  it  to  counsel  for  advice,  and  afterwards 
publicly  abandoned  their  claim,  and  the  property  was  sold  at  the  instance 
of  creditors,  and  went  into  the  hands  of  purchasers  for  valuable  consid- 
eration, they  shall  not  be  permitted  afterwards  to  setup  their  claims:  that 
would  sanction  a  practical  fraud  on  the  pui-chasers.  Their  acquiescence  is 
an  abandonment  of  their  rights.     Jackson  and  others  v.  Inabnit 416 

WASTE. 

1.  On  a  bill  for  partition,  the  Court,   in  ordering   an  account  for  rents  and 

profits,  may  also  decree  compensation  for  the  deterioration  of  the  land  by 
cultivation,  as  for  waste.  Buckler  v.  Farrow Ill 

2.  The  doctrine  of  waste  as  applicable  to  this  country,  considered.     Adni'rs  of 

Johnson  v.  Ex.'ors  of  Johnson 281 

K.  Cases  in  relation  to  waste  committed  by  tenants  for  life  and  in  common, 

referred  to,     lb , 295 

4.  Where   a    tenant   in    common    by    cutting    down    and    clearing   woodland 

beyond  his  interest,  injures  his  co-tenant,  he  is  liable  for  waste;  and  so  too 
if  a  tenant  for  life  cut  down  more  than  is  necessary  for  the  enjoyment  of 
bis  estate  and  injures  the  remainder,  he  is  guilty  of  waste  and  liable  to 
account,     lb 29G 

5.  Tenant  for  life  in  right  of  his  wife  of  land  and  slaves,  with  remainder  in  fee 

of  one-sixth  in  the  land  after  her  death,  cleared  out  woodland  in  the  centre 
of  the  tract,  not  leaving  sufficient  timber  to  repair  the  place: — Held,  that  if 
there  was  open  land  sutficient  for  the  employment  of  the  wife's  slaves  when 
the  husband  got  possession,  the  clearing  by  him  was  waste.     lb 297 

6.  Injunction  granted  to  restrain  defendant,  pending  an  action  to  try  titles, 

from  committing  waste  by  cutting  and  carrying  off  the  timber,  where  the 
chief  value  of  the  land  consisted  in  the  timber,  and  it  appeared  more  than 
probable  that  defendant  would  not  be  able  to  pay  the  damages  which  might 
be  recovered.     Kinsler\.  Clarke 618 

WILL, 

1.  Devise  to  several  ascertained  individuals,  and  to  a  class  of  individuals  to 

be  ascertained  on  some  future  event,  that  class  will  take  a  share  equal  to 
that  of  each  of  the  ascertained  individuals,  and  no  more.  Coimor,  Adm'r, 
andother^v.  Johnson,  Adm'r,  and  others 44 

2.  Testator  devised  that  "after  the  death  of  his  wife,"  his  estate  should  be 

given  to  seven  persons  by  name,  and  to  the  children  of  E.  C  : — Held,  that 
the  persons  named  took  each,  one  eighth  part  of  the  estate,  and  the  children 
of  E.  C.  living  at  the  death  of  the  tenant  for  life,  the  remaining  eighth— and 
that  no  estate  vested  in  any  of  the  children  of  E.  C.  who  died  before  the 
period  of  distribution  (the  death  of  the  tenant  for  life,)  so  as  to  be  trans- 
missible to  their  personal  representatives.     lb 44, 

3.  The  plantation  on  which  the  testator  resided    consisted    of  two  adjoining 

tracts,  on  one  of  which  his  mills  were  situated  :  in  a  devise  of  the  plantation 
to  his  wife  for  life,  it  was  held,  that  the  mills  passed  under  tlie  general 
term  "plantation."  This  construction  is  supported  by  another  clause  of 
the  will  directing  his  houses,  mills,  and  all  his  lands,  to  be  equally  divided 
among  his  sons.     Nash  v.  Savage  and  Nash,  jEx'ors 50 

4.  Testator's  will  directs,  that  after  the  death  of  his  wife,  his  negro  girl  Fan, 


530  INDEX. 

is  to  be  sold,  and  her  pi-oceeds  divided  among  his  five  eldest  children;  lout 
if  bis  sou  William  choose  he  may  keep  Fan  by  paying  to  each  of  the  said 
children  one  hundred  dollars.  And  directs  the  residue  of  his  estate  to  be 
divided  among  his  five  younger  children :  Fan  had  one  child  after  the  execu- 
tion of  the  will  and  before  testator's  deatli,  and  five  after  his  death,  and 
before,  the  death  of  the  tenant  for,  life: — Held,  that  the  increase  of  Fan 
before  testator's  death,  fell  into  the  residuum:  that  a  specific  vested  legacy 
in  Fan,  to  take  efi'ect  on  the  death  of  testator's  wife,  was  not  given  either 
William,  or  (on  his  refusal  to  take  her  at  the  price  fixed)  to  the  elder 
children;  but  that  this  was  a  mere  direction  to  divide  the  proceeds  of  Fan's 
sale  among  the  elder  children,  with  a  privilege  to  William  of  taking  her 
at  that  time  at  a  fixed  price;  and  consequently,  that  her  increase  after  testa- 
tor's death  did  not  belong  either  to  William  ( if  he  had  elected  to  take  her) 
or  to  the  elder  children,  but  fell  into  the  residuum,  and  was  divisible  among 
the  younger  children.     Bnjson,  Ad'mr,  v.  NickoUs  and  others 114 

5.  Testator  by  his  will  directed,  that  his  estate    should  accumulate  for   the 

benefit  of  his  son  and  daughter,  "then  on  either  of  them  arriving  of  age,  or 
on  the  marrage  of  ray  daughter  prior  to  such  period,  that  it  be  equally 
shared  between  them,  which  they  and  their  issue  legally  begotten  are  to 
enjoy  forever;  but  in  case  of  the  demise  of  my  daughter,  that  the  negroes 
I  got  through  her  mother  do  revert  to  the  children  of  P.  S.  L.;  and  likewise 
that  such  negroes  I  got  by  the  mother  of  my  son  to  revert  to  H.  B.:"  and 
by  another  clause  declared  "that  in  case  of  the  deatli  of  my  daughter  and 
son  prior  to  their  being  of  age,  or  having  issue  that  the  whole  of  my  estate 
be  given  to  G.  E.  &  E.  £.:" — Held,  that  the  following  is  the  true  construc- 
tion:— 1st.  If  the  daughter  should  die  before  m.arriage  or  maturity,  thjj.t 
the  negroes  received  by  the  testator  from  her  mother  should  revert  to  the 
children  of  P.  S.  L.;  2d.  That  if  his  son  should  die  before  the  same  event 
without  children,  the  negroes  received  by  his  mother  should  go  to  H.  B  : 
8d.  That  if  both  should  die,  the  daughter  before  marriage  or  full  age  and 
the  son  under  age  and  without  issue,  then  that  the  whole  remaining  estate 
should  go  to  G.  E.  &  E.  E.     Edivards  v.  Barksdalc \ 192 

6.  The  words  of  the  devise  to   testator's  son  and   daughter,   will   not  create 

a  fee  conditional  in  the  real  estate.  The  doctrine  of  fees  conditional  con- 
sidered,     lb 19G 

7.  A  possibility  of  reverter  is  not  divisable  (Per  Harper  Ch.)  Deas  and  Wife 

V.  Horry  and  others 248 

8.  Testfitrix  devised  to  her  grand-niece,  viz:  "one  thousand  acres  of  land,  to 

be  taken  off  my  plantation  called  Good  Hope,  to  be  run  off  conveniently  ad- 
joining the  place  called  Cave  Hall  late  the  property  of  W.  C.,  which  said 
plantation,  called  Cave  Hall,  shall  be  purchased  and  paid  for  out  of  ray 
estate,  and  shall  be  given  to  my  said  grand-niece,  making  in  all  fourteen 
hundred  acres:" — Held,  that  this  was  a  devise  of  the  whole  plantation 
called  Cave  Hall  although  containing  one  thousand  five  hundred  and  fifty 
acres,  or  its  equivalent;  and  the  executor  was  ordered  to  make  the  purchase 
for  the  benefit  of  the  devisee.      Cheeves,  Ex'or,  v.  Dallas  and  others ,  300 

9.  Testatrix  by  her  will  gave  pecuniary  legacies  to  the  amount  of  one  thou- 

sand and  sixty  dollars,  and  several  specific  bequests  to  her  niece*  ^I.  E.  H., 
and  others,  of  negroes  and  other  property  including  her  Indian  leased 
land,  and  then  directs,  viz  :  "  1  further  will  and  devise  that  my  negro 
man  Will,  have  the  privilege  of  choosing  his  master,  and  be  appraised  to 
him  by  two  good  men,  and  that  all  my  other  property  be  sold  and  the 
proceeds  be  applied  towards  the  legacies  mentioned  within,  and  the  re- 
maining sum  of  the  legacies  be  paid  by  M.  E.  H."  Will  and  the  other  pro- 
perty directed  to  be  sold,  were  sold  for  eight  hundred  and  ninety-four 
dollars;  the  debts  amounted  to  three  hundred  and  seventy-eight  dollars: 
Held,  that  the  amount  of  the  price  of  Will  and  the  other  property  sold, 
was  a  fund  set  apart  for  the  payment  of  the  pecuniary  legacies,  and  was 
exempted  from  the  payment  of  the  debts;  that  M.  E.  H.  should  make  up 
the  deficiency  in  that  sum,  to  the  pecuniary  legatees  ;  and  that  she  and 
the  other  specific  legatees  should  contribute  ratably  to  the  payment  of  the 
debts,     Ex'orsof  White  v.  Vaiic/han 334 


INDEX.  531 

10.  Whether  a  bequest  is  given  absolutely,  depending  on  the  friendship  and 
good  will  of  the  legatee  to  deal  with  it  as  testator  recommends,  or  condi- 
tionally and  coupled  with  a  trust,  depends  on  this  :  if  it  was  intended  that 
he  should  have  it  entirely  in  his  own  power  nnd  discretion  to  nuikc  the 
application  or  not,  it  is  absolutely  given;  but  if.  on  the  face  of  tlie  will, 
there  is  declaration  plain,  that  he  is  to  take  it  in  trust,  though  the  trust  be 
not  declared  or  ineffectually  declared,  or  become  incapable  of  taking  effect, 
the  party  taking  shall  be  a  trustee  for  those  who  wouhl  take  either  under 

the  will  or  at  law.      Fable\.  Brou-n,  Ex'or  308 

11.  Testator,  by  his  will,  made  specific  bequests  to  his  grand-children,  and  lent 
the  rest  of  his  estate  to  his  wife  for  life,  and  then  directs,  viz  :— "  And  at 
her  decease  I  desire  that  my  executor  do  advertise  and  sell,  and  eqnalbj 
divide  all  my  estate  between  my  children  and  or  their  heirs."  At  the  execu- 
tion of  his  will,  and  at  his  death,  testator  had  a  wife,  two  sons,  both  of 
whom  had  children,  and  two  grand-daughters,  children  of  a  deceased  son. 
On  a  bill  filed  by  the  grand-daughters  (the  children  of  the  deceased  son,) 
claiming  under  the  residuary  clause:  Held,  that  the  limitation  over  on 
the  widow's  death  was  a  vested  interest,  and  could  vest  only  in  such 
persons  as  answered  the  description  of  "children"  and  "  lieirs"  of 
children  ;  and  none  answering  description  of  "  heirs  of  children"  but  the 
plaintiffs,  they  took  with  the  two  sons,  on  the  widow's  death,  the  sons  one- 
third  each,  and  the  plaintiffs  the  remaining  third  between  them.  Britton 
and  Wife  v.  Johnson, 430 

12.  Although  the  words  "  it  is  my  wish"  in  a  will,  generally  operate  ds  a  direct 

bequest,  yet  they  will  be  construed  to  mean  rather  an  inclination  of  the 
mind,  than  an  act  of  the  will,  where  a  different  construction  would  produce 
inconsistency  and  repugnance.     Brimson  and  Wife  v.  Iluntefs  Ad/n'rs  and 

Heirs 490 

See  Annuity.      Appointment.     Coxtribction,  1      E-maxcipation  of  Slaves, 
5,  6.     Increase.     Limitation  of  Estates.     Slaves,  5,  6. 

WITNESS. 

1.  Where  the  husband  would  be  a  competent  witness  the  wife  may  be  sworn:    - 

and  where  the  husband  if  living  would  have  been  competent  to  prove 
fraud  in  a  deed  from  himself  to  his  sisters,  his  wife  is  competent  to  prove 
his  acts  and  declarations.     Bell  v.  Coiel, 110 

2.  The  interest  to  disqualify  a  witness  must  be  present  and  certain,  and  not 

uncertain  and  contingent  :  And,  therefore,  where  a  tenant  for  life  of  slaves 
loaned  them  to  her  son,  and  on  her  death  her  estate,  excluding  these  slaves, 
was  divided  between  her  sou  and  daughter,  on  a  bill  by  the  remainder-men 
against  the  administrators  of  the  son,  for  specific  delivery  of  the  slaves, 
the  husband  of  the  daughter  is  a  competent  witness  for  the  plaintiffs,  to 
prove  the  identity  of  the  slaves ;  although  if  the  plaintiffs  should  fail  to 
identify  the  slaves,  and  the  defendants  to  prove  that  the  stock  had  perished, 
the  estate  of  the  tenant  for  life  might  be  made  liable  for  the  value,  and 
the  witness  required  to  contribute.     Horry  ^  Trapier  v.  Glover  and  others,  525 


\ 


I 


CO 


(■'^^Si        i|ljS 


^/^•JU^vHfl^•;^l^       «^/?JiHV«8na^        ^J^inwwn^^     %aiAiNnwv^ 


<?v  B^'O        ^.^         /'^ 


^'EllBRARYQc 


^^0Jiivjjo=^    '^tfojnvjjo'^ 


^OFCAllFOftik 


aOFCAIIFO% 


'^/saaAiNn-jftv' 


1]  ?o       O 


^^OJIIVJ-JO'^ 


/i!^      ^OFCAllFOfti^ 


} 


i  s 


,^? 


^•lOSANCEl^^ 


^lOSANCFl^^ 


N^      '^'OAavaaniv^^ 


^■JJUDNVSOl^"         v/SWAINfUiVv 


';>Jiavaan-^v>      youn 


in;  SOinill  HM  l!l  r.lDNAI  l  lllllAliY  I  ACn  ITY 


%a3AiNn3y^ 


%iiaAlNIlJV«i^ 


> 


;-AN 


AA    000  91»/()G    3 


^^\WEIINIVER%       ^lOSAN 


<riia3Nvsoi^     "^/smii 


^5»FIWIVER% 


^lOSANCn% 


% 


AMEUNIVrR% 


^QlDNVSOV^'^ 


•%Ja3AlNft3V«^ 


<<5U9NVsoi^     ■^aaAiNft-atf^       %ojnv3jo=^ 


aofcaiifo% 

>     v.„,^ 

^^•Aavaan-1^ 


^OFCAtl 


"^(^AiJVa: 


§  1   ii--'  ^ 


^      %HaAiKnittv 


>«>Aava8n#' 


^^AHvaaiv^ 


^     "^^/yaaAiNniftv^      ^ojitvdjo'^    ^ojiivdjo'^      %U3Nvsoi^ 

5^       ^lOSANCElfj^        ^OFCAltFOR^^     ^OFCAllFOi?^         ^^WEIINIVER% 


'^J^UONVSOl^ 


%iUAif 


^5J(\EUNIVER%       ^lOSAKCna-^ 


so  Q 

'^      %0JI1V3J0'^ 
^      ^OFCAIIFO/?^^ 


cr      52 


'^TimKYsoi^^^     "^iisjaAiNa-aftv 


.5Jl\E«NIVER%      ^10SANCEI% 


•sSl  l!:5^i  l(SC 


-v^^tUBR- 


^OFCAUF0i?/(^      ^OFCAl 


